Trinity Biotech PLC 6-K, filed Apr 11, 2022
Trinity Biotech PLC (TRIB)
6-K
2022-04-11
For: 2022-04-11
View Original
Added on
July 07, 2026
About this 6-K
Trinity Biotech PLC filed this 6-K on April 11, 2022.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
F O R M 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-
16 UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of April , 2022
TRINITY BIOTECH PLC
(Name of Registrant)
IDA Business Park
Bray, Co. Wicklow
Ireland
(Address of Principal Executive Office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ___
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ___
Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule
12g3-2(b) under the Securities Exchange Act of 1934.
Yes ☐ No ☒
If "Yes" is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82- __________
EXPLANATORY NOTE
On April 11, 2022, Trinity Biotech plc announced a strategic investment in the Company by Mico Group (KOSDAQ: 059090.KQ), a leading global technology group headquartered in South Korea. The
investment consists of approximately 11,200,000 American Depositary Shares (ADSs) (each representing Ordinary Shares of the Company) at a price of $2.25 per ADS. In addition to the newly issued equity, the Company has agreed to issue a seven-year,
unsecured junior convertible note in the amount of $20 million, with a fixed interest rate of 1.5% and an ADS conversion price of $3.24 per ADS. It is intended that these funds will be primarily used to repay part of the $81.25 million term loan
entered into between the Company and Perceptive Advisors in December 2021.
In conjunction with the strategic investment, the founder and chair of MiCo, Mr. Sun-Q Jeon, will become Chairperson of Trinity Biotech. Additionally, Aris Kekedjian and Michael Sung Soo Kim are
expected to join the Board once the aforementioned investment is completed. Current directors Kevin Tansley, Clint Severson and James Merselis will retire from the Board at such time. Trinity Biotech will continue to be led by its senior executive
team, CEO Ronan O’Caoimh and CFO John Gillard, who will both remain board members of Trinity Biotech.
The preceding description is a summary of the agreements entered into by the Company in connection with the above-referenced transaction and does not purport to be a complete description of the
rights and obligations of the parties thereunder. Such summaries do not purport to be complete and are qualified in their entirety by reference to the Securities Purchase Agreement, the Convertible Loan Note and the Registration Rights Agreement,
which are filed as exhibits to this Report. Investors and security holders of the Company are urged to read the exhibits filed herewith in their entirety because they contain important information about the transaction.
EXHIBIT INDEX
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Exhibit
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Description
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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TRINITY BIOTECH PLC
(Registrant)
By: /s/ Ronan O’Caoimh
Date: 11 April 2022
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Exhibit 99.1
Press Release dated April 11, 2022
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Contact:
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Trinity Biotech plc
John Gillard
(353)-1-2769800 |
Lytham Partners, LLC
Joe Diaz
(1)-602-889-9700
E-mail: investorrelations@trinitybiotech.com
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Trinity Biotech Announces A $45 Million Strategic Investment And
Partnership With The MiCo Group of South Korea
DUBLIN, Ireland (April 11, 2022)…. Trinity Biotech plc (Nasdaq: TRIB), a leading global diagnostic company (“Trinity Biotech” or the “Company”), today announced a $45 million
strategic investment and partnership with MiCo Ltd (“MiCo”). MiCo, a KOSDAQ-listed and Korea-based company, is engaged in the biomedical business through its affiliate MiCo BioMed, in addition to providing cutting-edge technology driven solutions
in the semi-conductor and green energy sectors.
The investment consists of approximately 11.2m ADSs at a price of $2.25 per ADS, which represents an approximately 130% premium to the closing price of $0.98 on April 8, 2022. Following this
investment MiCo will hold 29.9% of the voting share capital of the Company.
In addition to the newly issued equity, the Company has agreed to issue a seven-year, unsecured junior convertible note in the amount of $20 million, with a fixed interest rate of 1.5% and an ADS
conversion price of $3.24 per ADS. This will result in a total investment by MiCo of approximately $45 million. The convertible note mandatorily converts into ADS if the volume weighted average price of the Company’s ADSs is at or above $3.24 for
any five consecutive NASDAQ trading days.
It is intended that these funds will be primarily used to repay a portion of the Company’s $81.25 million term loan, which is expected to reduce the Company’s annual interest cost by approximately $4
million each year. The Company also expects that this investment will facilitate it exploring lower cost debt funding options, in the short term, with the aim of further reducing the company’s interest expense through refinancing the balance of the
Company’s term loan at substantially lower interest rates.
The investment is subject to customary Korean central bank approvals and is expected to close before the end of April 2022.
MiCo BioMed is an in-vitro diagnostics (IVD) focused biotechnology company with innovative Lab-on-a-Chip and AI-based rapid point of care (“PoC”) testing applications in various diseases that are supported by a
competitive large scale manufacturing base in Korea. MiCo BioMed has a leading-edge desktop molecular PCR testing platform that has achieved impressive growth in Africa, Asia, South America, and European markets with approximately 800 placements
over the past 2 years.
The leadership teams from both Trinity Biotech and MiCo have identified the dramatic disruption to the diagnostic market brought about by COVID-19, with a change in diagnostic practices away from
centralised lab-based testing to dispersed testing in at home and at point of care settings PoC, as leading to a need for a broader range of high quality, technology-enabled PoC and at home testing products and services to support the expected global
adoption of distributed diagnostics. This strategic investment and partnership are intended to accelerate Trinity Biotech’s organic and inorganic growth into one of the world’s largest diagnostic companies, with a focus on innovative
technology-driven PoC and at-home diagnostic products and services.
Trinity Biotech, with its 30-year history in the PoC diagnostic market, broad range of clinical diagnostic products across infectious diseases, haemoglobins and autoimmunity and a pan-global market
presence, provides a strong platform upon which it can expand its product offering, through organic and inorganic growth, to serve the needs of this changing diagnostic market.
Through distribution and joint development agreements, it is intended that Trinity Biotech will distribute MiCo BioMed’s molecular PCR and next-generation ELISA diagnostic platforms in Trinity
Biotech’s core markets including North America and Western Europe – this will provide Trinity Biotech with a significant expansion of its product portfolio. In addition, it is intended that MiCo BioMed will obtain commercial rights to sell certain of
Trinity Biotech’s products in numerous global markets including countries within the Asia-Pacific market. The partnership is also focused on other key areas of collaboration including R&D, pan-global regulatory certifications and manufacturing
synergies.
Board Appointments
In conjunction with MiCo and MiCo BioMed’s strategic investment, the founder and chair of MiCo, Mr. Sun-Q Jeon, will become Chairperson of Trinity Biotech.
In conjunction with the financing, Trinity Biotech is also pleased to announce a number of upcoming appointments to its Board with Aris Kekedjian and Michael Sung Soo Kim expected to join the Board
once the aforementioned investment has completed.
Aris Kekedjian is a strategic senior executive with broad-based success across industrial and financial businesses and a record of accomplishment in platform leadership, business development,
finance, mergers/acquisitions, IPOs, capital markets and global growth. A globally experienced dealmaker, Aris spent 30 years in GE in a number of senior roles, including 5 years as GE’s Chief Investment Officer. Most recently, Aris was CEO of
Icahn Enterprises.
Michael Sung Soo Kim has a wealth of financial experience having spent the last three decades within international finance across areas such as Asset Management, Real Estate Investments,
Robo-Advisory and Wealth Management and has held a number of senior executive positions include CEO of Hyundai Securities Asia.
Current directors Kevin Tansley, Clint Severson and James Merselis will retire from the Board on completion of the aforementioned investment. Trinity Biotech will continue to be led by its senior
executive team, CEO Ronan O’Caoimh and CFO John Gillard, who will both remain board members of Trinity Biotech.
Comments
Trinity Biotech
Commenting on the transactions, Mr. Ronan O’Caoimh, CEO and Chairman stated, “I am excited that we are entering into this strategic partnership with MiCo and I warmly welcome Sun-Q, Aris and Michael to Trinity
Biotech’s board. I believe that this investment together with access to MiCo’s technological expertise and geographic networks positions Trinity Biotech for exciting growth and will accelerate the further development and commercialisation of
Trinity Biotech’s diagnostic platforms. I am particularly excited that Trinity Biotech will have access to MiCo BioMed’s leading edge molecular PCR platform which will immediately strengthen our portfolio of leading diagnostic products. I look
forward to working closely with Sun-Q, MiCo’s management team and our new board members in driving Trinity Biotech’s growth as we embark on this next ambitious phase in our company’s development.”
Commenting, John Gillard, Chief Financial Officer stated, “The $45 million investment by MiCo represents another important step in strengthening Trinity Biotech’s balance sheet, following our recent successful
refinancing with Perceptive Advisors. This investment should substantially reduce our annual interest expense and is expected to provide us with access to further, lower cost refinancing options. The reduced cash outflow, along with the
expected sales and development synergies with MiCo, should allow our company to leverage its existing diagnostic platforms, both organically and inorganically, to rapidly develop technologically driven products and services that play a leading
role in meeting the needs of today’s changing diagnostic market”.
MiCo
Commenting on the partnership, the founder and chair of MiCo, Mr. Sun-Q Jeon stated, “It is exciting to see MiCo and Trinity Biotech allied to serve our global customers to meet their diagnostic needs by effectively
utilizing the resources of the two companies. We will keep innovating our tests and testing platforms in the post-COVID-19 era to become a major player in the global IVD industry.”
Commenting, Dr. Sung-Woo Kim, CEO at MiCo BioMed stated, “MiCo’s strategic investment in Trinity Biotech will help both organizations
effectively expand their product menu and global market access. Together, we can better support customer needs in a broad spectrum through localized and cost-effective manufacturing. Also, innovation in future product development can be made
possible by R&D and regulatory collaborations. Evidently, this strategic alliance will bring many synergies to the two companies benefiting our customers and the shareholders."
Davy Corporate Finance assisted the Trinity Biotech board in its consideration of the terms of the proposed investment by MiCo. Carter Ledyard & Milburn and Matheson acted as U.S. and Irish
legal advisers, respectively to Trinity Biotech.
MiCo was advised by Pacific General, a New York and Seoul based merchant banking and asset management firm, who initiated MiCo’s strategic investment in partnership with MiCo and will also act as
investment manager to MiCo IVD Holdings, a MiCo investment vehicle. Nelson Mullins Riley & Scarborough and LK Shields acted as U.S. and Irish legal advisers, respectively, to MiCo.
About Trinity Biotech
Trinity Biotech develops, acquires, manufactures and markets diagnostic systems, including both reagents and instrumentation, for the point-of-care and clinical laboratory segments of the diagnostic
market. The products are used to detect infectious diseases and to quantify the level of Haemoglobin A1c and other chemistry parameters in serum, plasma and whole blood. Trinity Biotech sells direct in the United States, Germany, France and the U.K.
and through a network of international distributors and strategic partners in over 75 countries worldwide. For further information please see the Company's website: www.trinitybiotech.com.
About MiCo
MiCo’s growth coincides with the industrialization and economic development of Korea in the field of national key industries such as semiconductor, biomedical, and green energy based on the
management philosophy of the MiCo-affiliated companies.
MiCo’s major affiliates include MiCo BioMed, an IVD company providing cutting-edge POC testing solutions; KoMiCo, the global No.1 chamber management solution provider for semiconductor manufacturing;
MiCo Ceramics, a high-functional ceramic manufacturer for semiconductor manufacturing; MiCo Power, an up-and-coming leader in solid oxidation fuel cell (SOFC) solutions.
By establishing production and sales subsidiaries in over 12 countries around the world, and a presence in more than 70 countries, MiCo aims to become a leading global company, helping people live
healthier lives in a cleaner environment enabled by eco-friendly and advanced diagnostic technologies. MiCo is nurturing innovative LabChip and AI-based PoC platforms and Green Energy Solutions that will lead “the fourth industrial revolution era” as
a new growth engine.
Forward Looking Statements
Certain statements made in this release that are not historical are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. The
words “should”,” intend“, estimate”, “project”, “intend”, “expect”, “believe” and similar expressions are intended to identify forward-looking statements. These forward-looking statements involve known and unknown risks and uncertainties. Many
factors could cause the actual results, performance or achievements of Trinity Biotech to be materially different from any future results, performance or achievements that may be expressed or implied by such forward-looking statements, including, but
not limited to, the results of research and development efforts, risks associated with the outbreak and global spread of the coronavirus (COVID-19), the effect of regulation by the U.S. Food and Drug Administration and other agencies, the impact of
competitive products, product development commercialization and technological difficulties. For additional information regarding these and other risks and uncertainties associated with Trinity Biotech’s business, reference is made to our reports
filed from time to time with the U.S. Securities and Exchange Commission. We undertake no obligation to update or revise any forward-looking statements for any reason.
Exhibit 99.2
DATED APRIL 11 2022
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TRINITY BIOTECH PLC
AND
MICO IVD HOLDINGS, LLC
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SECURITIES PURCHASE AGREEMENT
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MATHESON
70 Sir John Rogerson's Quay
Dublin 2
Ireland
DO2 R296
T: +353 1 232 2000
F: +353 1 232 3333
55262318.4
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CONTENTS
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THIS AGREEMENT (this “Agreement”) is dated as of April 11, 2022,
BETWEEN
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TRINITY BIOTECH PLC, a public limited company incorporated under the laws of Ireland (registration number 183476) having its registered office at IDA Business Park, Bray, Wicklow, Ireland (the “Company”);
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AND
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MiCo IVD Holdings, LLC, a limited liability company organized under the laws of the State of Delaware, USA having its registered office at 85 Orchard Rd, Skillman, NJ 08558 (the “Purchaser”);
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WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to:
| A. |
The share capital of the Company is USD 2,536,430 divided into 232,700,000 Ordinary Shares of nominal value USD 0.0109 each.
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| B. |
The Purchaser proposes to make an investment in the Company in the amount of approximately USD 25,177,155.75 (the “Investment”). In return, the Company agrees to issue and deliver to the Purchaser
11,189,847 ADS (the “New ADSs”) (each representing 4 Ordinary Shares) at a price equal to USD 2.25 per New ADS, on the terms and subject to the conditions of this Agreement.
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In conjunction with the Investment, the Company and the Purchaser intend to enter into a Fixed Rate Redeemable Unsecured Convertible Loan Note (the “Convertible Note Agreement”) pursuant to which,
among other things, the Purchaser will provide a convertible loan to the Company (the “Convertible Note Financing”) in the principal amount USD 20,000,000 (the “Note
Subscription Amount”). The Convertible Note Financing shall be effected on or around the Closing Date (as defined below).
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NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the Company and the Purchaser agree as follows:
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| 1.1 |
Definitions
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In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:
“Action” means any action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign).
“ADS” means the American Depositary Shares of the Company (represented by American Depositary Receipts) held by The Bank of New York
Mellon, as depositary.
1
“ADS Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time
ADS, including, without limitation, any debt, preferred share, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, ADSs.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under
common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction applicable to the Company and its Subsidiaries
concerning or relating to bribery or corruption, including, without limitation, the Foreign Corrupt Practices Act of 1977, as amended and any similar law enacted in any of the United States or any other jurisdiction applicable to the Company and
its Subsidiaries prior to or on the Closing Date.
“Anti-Terrorism Laws” means any laws or regulations relating to terrorism or money laundering, including, without limitation the Bank
Secrecy Act (31 U.S.C. §§ 5311 et seq.), the Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956 et seq.) and the USA Patriot Act, and any similar law enacted in any of the United States or any other jurisdiction applicable to the Company and
its Subsidiaries prior to or on the Closing Date.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York, Dublin,
Ireland or Seoul, South Korea are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”,
“shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any Governmental Authority so long as the electronic funds transfer systems (including for
wire transfers) of commercial banks in The City of New York, Dublin, Ireland and Seoul, South Korea generally are open for use by customers on such day.
“Claims” includes claims, litigation, demands, complaints, grievances, actions, applications, suits, causes of action, orders, charges,
indictments, prosecutions, information (brought by a public prosecutor without grand jury indictment) or other similar processes, assessments or reassessments.
“Closing” means the closing of the issuance and delivery of the New ADSs pursuant to Section 2.1.
“Closing Conditions” has the meaning assigned to such term in Section 2.3.1.
“Closing Date” means the Trading Day on which all Closing Conditions have been satisfied or otherwise waived in accordance with Section
2.3.
“Commission” means the United States Securities and Exchange Commission.
“Convertible Note Agreement” has the meaning assigned to such term in the Recitals.
“Convertible Note Directors” shall have the meaning assigned to such term in the Convertible Note Agreement.
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“Credit Agreement” means the credit agreement and guaranty entered into between the Company and Perceptive Credit Holdings III, LP
dated 15 December 2021, as amended.
“Damages” shall have the meaning ascribed to such term in Section 4.8.
“Data Protection Laws” means all laws, decisions, codes of practice and guidance relating to data protection and privacy which are from
time to time applicable to the Company and/or the Subsidiaries.
“Data Room” means the virtual data room hosted by Intralinks entitled "Project Creation"
opened to the Purchaser in March 2022 in connection with the transactions to be effected pursuant to the terms of this Agreement and closed to the Purchaser and any other Person as at 5pm EST on 8 April 2022.
“De Minimis Claim” means any claim by the Purchaser for breach of a representation or warranty under either this Agreement or the
Convertible Note Agreement where the amount of Damages in respect of such claim is less than USD 250,000, save that in the case of a claim arising out of a breach of the Special Representations a “De Minimis Claim” shall be any claim where the
amount of Damages in respect of such claim is less than USD 20,000.
“Designated Person” means a person or entity:
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listed in the annex to, or otherwise targeted by the provisions of, the Executive Order (as disclosed by World-Check or another reputable commercially available database);
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named as a “Specially Designated National” or Blocked Person” on the most current list published by OFAC at its official website or any replacement website or other replacement official
publication of such list (as disclosed by World-Check or another reputable commercially available database); or
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with whom or which the Purchaser is prohibited from dealing or otherwise engaging in any transaction by any Economic Sanctions Laws or Irish Economic Sanctions Laws.
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“Disclosure Schedule” means Schedule 1 to this Agreement.
“Disclosed” means fairly disclosed or incorporated in the Disclosure Schedules in a manner and in such detail to enable the Purchaser
to identify the nature and scope of such fact or circumstance in such a manner that:
(i) in the context of the disclosures contained in the Disclosure Schedules:
(a) the significance of the information disclosed and its relevance to a particular representation and/or warranty is reasonably apparent from the terms of the document; and
(b) there is not omitted from the information disclosed any information which would have the effect of rendering the information so disclosed misleading in any material
respect.
(ii) in the context of any document treated as disclosed by the Disclosure Schedules, including by reference to the Data Room, the matter disclosed is reasonably apparent from
the terms of the document.
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“Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 am (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 am (New York City time) on the Trading Day immediately following the date hereof, unless otherwise instructed as to an earlier time the Company, and (ii) if this Agreement is signed
between midnight (New York City time) and 9:00 am (New York City time) on any Trading Day, no later than 9:01 am (New York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Company.
“Economic Sanctions Laws” means (a) an Executive Order of the U.S. Executive Branch, the International Emergency Economic Powers Act
(50 U.S.C. §§ 1701 et seq.), the Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), the U.S. Arms Export Control Act (22 U.S.C. Ch. 39 § 2751), any other law or regulation promulgated under the U.S. Code and administered by a U.S. Agency and
any similar law enacted in the United States prior to or on the Closing Date and (b) any other similar applicable law now or enacted prior to or on the Closing Date in any other applicable jurisdiction.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Agreements” means the exchange agreements entered into between Trinity Biotech Investment Limited, the Company, and each of
Stonehill Institutional Partners L.P, Stonehill Master Fund Limited, Whitefort Capital Master Fund, LP, Highbridge Tactical Credit Master Fund L.P, and Highbridge Convertible Dislocation Fund L.P., in respect of a negotiated private exchange and
prepayment of 4% exchangeable Senior Notes, due 2045, in the principal amount of approximately USD 99,900,000 and each dated 15 December 2021.
“Executive Order” means the US Executive Order No. 13224 on Blocking Property and Prohibiting Transactions with Persons who commit,
Threaten to Commit, or Support Terrorism.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
“Financial Diligence Documents” means the documents set out within Folder 3.0 of the Data Room.
“Governmental Authority” means any nation, government, branch of power (whether executive, legislative or judicial), state, province,
territory, municipality or other political subdivision thereof and any entity exercising executive, legislative, judicial, monetary, regulatory or administrative functions of or pertaining to government, including without limitation regulatory
authorities, governmental departments, agencies, commissions, bureaus, officials, ministers, courts, bodies, boards, tribunals and dispute settlement panels, and other law-, rule- or regulation-making organizations or entities of any State,
province, territory, county, city or other political subdivision of the United States, Ireland, Canada, any foreign country or the European Union.
“Government Official” means any officer or employee of a Governmental Authority or any department, agency, or instrumentality thereof,
or of a Public International Organization, or any person acting in an official capacity for or on behalf of any such Governmental Authority or department, agency, or instrumentality, or for or on behalf of any such public international
organization, or any political party, party official, or candidate thereof.
“IFRS” shall have the meaning ascribed to such term in Section 3.2.8.
4
“Indebtedness” shall have the meaning ascribed to such term in Section 3.2.27.
“Intellectual Property” means all legally permissible rights and interests pertaining to or deriving from: (a) patents, patent rights,
patent applications (including all provisionals, reissues, reexaminations, revisions, divisions, continuations, continuations-in-part and extensions of any patent or patent application), inventions, discoveries, improvements, innovations,
industrial designs, and all applications for registration of the foregoing; (b) copyrights, registrations and applications for copyrights, works, derivative works, software (whether in source code, object code, executable code or human readable
form), software documentation, database rights, mask works, domain names, domain name registrations, web sites, web pages, moral rights, rights of privacy and publicity, and all applications for registration of the foregoing; (c) trade secrets,
know-how, processes, methods, data, and formula; (d) trademarks, service marks, trade names, logos, designs, brand names, trade dress, and slogans (including, without limitation, company names and fictitious names used by companies) and all
goodwill associated with any of the foregoing, and all applications for registration and renewals of the foregoing; and (f) other proprietary rights relating to any of the foregoing, including, without limitation, associated goodwill.
“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.2.17.
“Irish Anti-Corruption Laws” means the Criminal Justice (Corruption Offences) Act 2018 of Ireland.
“Irish Anti-Terrorism Laws” means the Irish Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.
“Irish Companies Act 2014” means the Irish Companies Act 2014 and all orders, statutory instruments and regulations made thereunder and
intended to be construed as one with the Irish Companies Act 2014.
“Irish Economic Sanctions Laws” means the Irish Financial Transfers Act 1992 and any other similar law, orders, statutory instruments
and regulations of Ireland and the European Union now or hereafter enacted which implement European Union and UN trade and/or financial sanctions.
“Key Employees” means any employee engaged in the creation or development of any Material Intellectual Property of the Company or
another function with access to Material Intellectual Property of the Company.
“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, pre-emptive right or other restriction.
“Loan Note Certificate” means the document set out at Schedule 1 of the Convertible Note Agreement.
“Long Stop Date” means the date that is 25 Business Days from the date of this Agreement (or such other date as may be agreed between
the Company and Purchaser in writing).
“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.2.2.
“Material Intellectual Property” means all Intellectual Property of the Company, whether currently owned or licensed, or acquired,
developed or otherwise licensed, necessary for the operation of the business of the Company as currently conducted or as currently contemplated to be conducted (i) the loss of which would reasonably be expected to have or result in a Material
Adverse Effect or that has a fair market value in excess of USD $1,250,000.
5
“Money Laundering Laws” shall have the meaning ascribed
to such term in Section 3.2.30.
“Material Permits” shall have the meaning assigned to such term in Section 3.2.14.
“New ADSs” shall have the meaning assigned to that term in Recital B.
“Notes” notes duly constituted pursuant to the Convertible Note Agreement.
“Note Subscription Amount” shall have the meaning assigned to that term in Recital C.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Ordinary Share” means the “A” ordinary shares of the Company, nominal value USD 0.0109 per share, and any other class of securities
into which such securities may hereafter be reclassified or changed.
“Outside Date” means the 10th Business Day following the Long Stop Date.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited
liability company, joint share company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or
partial proceeding, such as a deposition), whether commenced or threatened.
“Property” of any Person means any property or assets, or interest therein, of such Person.
“Public International Organization” means any organization formed by states, governments or other international organizations including
but not limited to regional economic integration organizations such as the European Union, the World Bank, or the United Nation.
“Purchaser Claim” means any claim by the Purchaser for breach of a representation or warranty under either this Agreement or the
Convertible Note Agreement which is not a De Minimis Claim.
“Purchaser Party” shall have the meaning ascribed to such term in Section 4.8.
“Qualified ADS Holding” means 15% of the Voting Rights from time to time.
“Registrable Securities” shall have the meaning ascribed to it in the Registration Rights Agreement.
“Registration Rights Agreement” means the Registration Rights Agreement, dated the date hereof, among the Company and the Purchaser, in
the form of Exhibit A attached hereto.
6
“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and
covering the resale by the Purchaser of the New ADSs.
“Required Approvals” shall have the meaning ascribed to such term in Section 3.2.5.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Sanctions” means economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time
by a Governmental Authority (including, but not limited to the United States Department of the Treasury, the United States Department of State, the United States Department of Commerce, the United States Department of Defense, the United States
Department of Energy, Ireland and the European Union and implemented by the Department of Foreign Affairs of Ireland, the Department of Enterprise of Ireland and the Central Bank of Ireland).
“Sanctions Laws” means all laws, rules, regulations and requirements of any jurisdiction applicable to the Company concerning or
relating to licensing, authorizing or imposition and enforcement of Sanctions, terrorism, money laundering and import or export trade.
“SEC Reports” shall have the meaning ascribed to such term in Section 3.2.8.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share Consideration” shall have the meaning ascribed to such term in Section 2.1.1.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to
include locating and / or borrowing ADSs).
“SPA Directors” shall have the meaning assigned to such term in Section 5.1.1.
“Special Representations” has the meaning ascribed thereto in Schedule 1.1 of the Disclosure Schedule.
“Subscription Amount” means, as to the Purchaser, the aggregate amount to be paid for New ADSs purchased hereunder as specified below
the Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in USD and in immediately available funds.
“Subsidiary” means any subsidiary of the Company as set forth in the Credit Agreement and Schedule 3.2.1.
“Tax” means:
| i. |
any form of tax, levy, impost, duty, surcharge, contribution, value-added tax, customs and other import duties, liability and charge in the nature of taxation (including, for the avoidance of doubt, any income tax, sales tax, use tax,
GST, HST, VAT, commercial activities tax, gross receipts, business and occupation tax, real and tangible personal property tax, payroll tax, employment taxes, and unclaimed property tax) and all related withholdings or deductions of any
kind (including, for the avoidance of doubt, any pay related social insurance in Ireland and corresponding obligations elsewhere) whether within Ireland or outside Ireland and whether imposed, administered, levied, assessed or collected by
any tax, revenue, fiscal, government, municipal or local authority and any other statutory, governmental, state, provincial or local governmental authority, body, court, tribunal or official whether in Ireland or elsewhere; and
|
7
| ii. |
all fines, penalties, charges, surcharges, costs and interest included in or relating to any of the above or to any obligation in respect of any of the above.
|
“Tax Return” means any return, election, declaration, report, claim for refund, or information return or statement required to be filed
or delivered with respect to any Tax, including any schedule or attachment thereto, and including any amendment thereof.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trade Compliance Laws” means all applicable export and import trade control laws or regulations of the United States, Ireland, the
European Union or other jurisdictions in which the Company and its Subsidiaries operate, and including, but not limited to, the Export Administration Regulations (“EAR”) administered by the Bureau of Industry and Security, United States Commerce
Department, the Trade Sanctions Reform and Export Enhancement Act of 2000 (“TSRA), as administered by the United States Department of the Treasury, the Regulation (EU) 952/2013 and the Commission Delegated Regulation (EU) 2015/2446 as administered
by the Irish Revenue Commissioners, and the Commission Implementing Regulation (EU) 2015/2447 and the Irish Control of Exports Act 2008 as administered by the Irish Department of Foreign Affairs and Trade.
“Trading Market” means any of the following markets or exchanges on which the ADSs are listed or quoted for trading on the date in
question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction Documents” means this Agreement, the Convertible Note Agreement, the Registration Rights Agreement, all exhibits and
schedules hereto and thereto and any other documents or agreements executed with the Purchaser in connection with the transactions contemplated hereunder.
“Transfer Agent” means Computershare Investor Services (Ireland) Limited, the current transfer agent of the Company, and any successor
transfer agent of the Company.
“USD” means US Dollars, being the lawful currency of the United States.
“Voting Rights” means voting rights in the Company, as determined pursuant to the Irish Takeover Panel Act, 1997, Takeover Rules, 2013.
“Warrant Instrument” means the warrant instrument to purchase up to 2,500,000 ADSs issued by the Company to Perceptive Credit Holdings
III, LP and dated 27 January 2022.
8
| 1.2 |
In this Agreement, unless the context otherwise requires or unless otherwise specified:
|
| 1.2.1 |
any reference to any statute, statutory provision or to any order or regulation shall be construed as a reference to that statute, provision, order or regulation as extended, modified, amended, replaced or re-enacted from time to time
and all statutory instruments, regulations and orders from time to time made thereunder or deriving validity therefrom;
|
| 1.2.2 |
words denoting any gender include all genders and words denoting the singular include the plural and vice versa;
|
| 1.2.3 |
all references to recitals, sections, clauses, paragraphs, schedules and annexes are to recitals in, sections, clauses and paragraphs of and schedules and annexes to this Agreement;
|
| 1.2.4 |
headings are for convenience only and shall not affect the interpretation of this Agreement;
|
| 1.2.5 |
words such as “hereunder”, “hereto”, “hereof” and “herein” and other
words commencing with “here” shall unless the context clearly indicates to the contrary refer to the whole of this Agreement and not to any particular section, clause or paragraph hereof;
|
| 1.2.6 |
in construing this Agreement general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular
class of acts, matters or things and general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words and any reference to the word “include” or “including” is to be construed without limitation;
|
| 1.2.7 |
any reference in this Agreement to a particular provision in a “Schedule” shall be a reference to a particular provision contained in the disclosure schedules set out at Schedule 1 of this
Agreement;
|
| 1.2.8 |
any reference to “Agreement” or any other document or to any specified provision of this Agreement or any other document is to this Agreement, that document or that provision as in force for the
time being and as amended from time to time in accordance with the terms of this Agreement or that document;
|
| 1.2.9 |
any warranty or representation in this Agreement which is qualified by the expression “to the knowledge of the Company” or "so far as the Company is aware"
or any similar expression shall be deemed to include an additional statement given by the Company that such warranty or representation has been made after due and careful enquiry of: John Gillard and Ronan O’Caoimh.
|
| 1.2.10 |
any reference to a person shall be construed as a reference to any individual, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two
or more of the foregoing; and
|
| 1.2.11 |
“writing” or any similar expression includes transmission by email.
|
9
| 2 |
| 2.1 |
Closing
|
| 2.1.1 |
On the Closing Date, upon the terms and subject to the conditions set forth herein, and in exchange for the delivery by the Purchaser of the Subscription Amount in accordance with section 2.2.2(b) below, the Company agrees to issue and
deliver, and the Purchaser agrees to accept, the New ADSs (the “Share Consideration”).
|
| 2.1.2 |
The Subscription Amount shall be applied in paying up the Ordinary Shares representing the Share Consideration (so as to be validly allotted and issued for the purposes of the requirements of the Irish Companies Act 2014).
|
| 2.2 |
Deliveries
|
| 2.2.1 |
On or prior to the Closing Date, the Company shall deliver or cause to be delivered to the Purchaser the following:
|
| (a) |
the Convertible Note Agreement substantially in the form attached hereto as Schedule 2 duly executed by the Company;
|
| (b) |
a Loan Note Certificate representing USD $20,000,000 principal value of Notes duly executed by the Company and delivered against delivery of the subscription amount for such Notes;
|
| (c) |
the Registration Rights Agreement duly executed by the Company;
|
| (d) |
a certificate of the secretary of the Company, in the customary form, certifying that all representations and warranties made by the Company pursuant to clause 3.2 of this Agreement are true in all material respects (or, to the extent
representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date (unless as of a specific date therein in which case they shall be accurate as of such date) and that
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date have been performed;
|
| (e) |
a certified copy of the resolutions of the Board of Directors at which (i) the Transaction Documents are approved for execution by the Company, (ii) the application is accepted and, subject to receipt of the Share Consideration, the New
ADSs are allotted and issued to the Purchaser, (iii) the expansion of the Board of Directors to seven (7) members is approved, (iv) the resignation of Kevin Tansley, James Merselis and Clint Severson from the Board of Directors subject to
but with effect from Closing is noted, (v) the appointment of the SPA Directors to the Board of Directors (to the extent the SPA Directors have been nominated by the Purchaser prior to the date of this Agreement), effective as of the
Closing is approved, (vi) the appointment of the Convertible Note Directors to the Board of Directors (to the extent the Convertible Note Directors have been nominated by the Purchaser prior to the date of this Agreement) effective as of
the Closing is approved, (vii) the ratification of the Nomination Committee of the Board of Directors consisting of not more than three members of the Board is approved, (viii) the appointment of at least one Purchaser Director and at least
one Convertible Note Director to the Nomination Committee is approved and (viii) instructions are given for the required filings and submissions to be made to the Irish Companies Registration Officer and any other office and/or register as
may be necessary in connection with the Transaction Documents;
|
10
| (f) |
an electronic copy of the Data Room on CDR-Rom or some other mutually agreed format;
|
| (g) |
New ADSs will be held on behalf of the Purchaser by the Bank of New York Mellon (“BNYM”) (as depository) in uncertificated form via direct registration system once BNYM have received confirmation
of the allotment of underlying shares from the Transfer Agent; and
|
| (h) |
the Company shall have provided the Purchaser with the Company’s wire instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer.
|
| 2.2.2 |
On or prior to the Closing Date, the Purchaser shall deliver or cause to be delivered to the Company the following:
|
| (a) |
this Agreement duly executed by the Purchaser;
|
| (b) |
the Subscription Amount and the Note Subscription Amount, which amounts shall be separately delivered to the Company pursuant to the Company’s wire instructions as provided pursuant to Section 2.2.1(h) herein; and
|
| (c) |
the Registration Rights Agreement duly executed by the Purchaser.
|
| 2.2.3 |
The Purchaser undertakes, on or before the Closing Date, to deliver a legal opinion prepared by South Korean counsel for the Purchaser and addressed to the Company (in English) as to the enforceability of that certain side letter entered
into by and between the Purchaser and the Parent on the date of this Agreement in connection with the transactions contemplated by this Agreement and the Convertible Note Agreement.
|
| 2.3 |
Closing Conditions
|
| 2.3.1 |
Notwithstanding any other provision of this Agreement, Closing is conditional on each of the matters specified in Section 2.3.2 and Section 2.3.3 having been fulfilled and complied with on or before the Long Stop Date (unless otherwise
waived by the Company or the Purchaser, as applicable) (the “Closing Conditions”).
|
| 2.3.2 |
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
|
| (a) |
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of
the Purchaser contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
|
| (b) |
all obligations, covenants and agreements of the Purchaser required to be performed at or prior to the Closing Date shall have been performed; and
|
| (c) |
the delivery by the Purchaser of the items set forth in Section 2.2.2 of this Agreement.
|
11
| 2.3.3 |
The respective obligations of the Purchaser hereunder in connection with Closing are subject to the following conditions being met:
|
| (a) |
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of
the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
|
| (b) |
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
|
| (c) |
the delivery by the Company of the items set forth in Section 2.2.1 of this Agreement;
|
| (d) |
the Company has obtained all Required Approvals (other than the filing with the Commission pursuant to the Registration Rights Agreement);
|
| (e) |
the appointment (subject only to Closing) of the SPA Directors to the Board of Directors (to the extent the SPA Directors have been nominated by the Purchaser prior to the date of this Agreement) and the Convertible Note Directors to the
Board of Directors (to the extent the Convertible Note Directors have been nominated by the Purchaser prior to the date of this Agreement).
|
| (f) |
there shall have been no Material Adverse Effect with respect to the Company since the date of its report on Form 6-K filed with the Commission on 16 December 2021; and
|
| (g) |
from the date hereof to the Closing Date, trading in ADSs shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally on any
nationally recognized securities exchange as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading
Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities which, in each case, in the reasonable judgment of the Purchaser, makes it impracticable or inadvisable to issue the New
ADSs at Closing.
|
| 3 |
| 3.1 |
Limitations on Representations and Warranties
|
| 3.1.1 |
For the avoidance of doubt and notwithstanding any other provision of this Agreement, in no circumstances shall the Company be liable in respect of any De Minimis Claim
|
| 3.1.2 |
The Company shall not be liable in respect of any and all Purchaser Claims unless and until the aggregate amount of Damages with respect to any or all Purchaser Claims (other than De Minimis Claims) exceeds USD 2,000,000 (the “Basket Amount”) in which case the Company shall be liable for the whole of such aggregate amount provided, however, that the Basket Amount shall not apply to any Purchaser Claims: (A) arising out of any
breaches of the Special Representations or (B) based on fraud or intentional misrepresentation.
|
| 3.1.3 |
The Purchaser shall not be entitled to recover damages or otherwise obtain reimbursement or restitution more than once in respect of the same loss arising from any one matter under representations and warranties.
|
12
| 3.1.4 |
For the avoidance of doubt, the Purchaser shall be entitled to make a Purchaser Claim in respect of the same matter under both this Agreement and the Convertible Note Agreement, PROVIDED ALWAYS
that the Company’s liability for Damages shall not exceed an amount equal to the Investment for Purchaser Claims under the Securities Purchase Agreement, and the Company’s liability for Damages shall not exceed an amount equal to the
Convertible Note Financing for Purchaser Claims under the Convertible Loan Note Instrument.
|
| 3.2 |
Representations and Warranties of the Company
|
The Company hereby makes the following representations and warranties to the Purchaser:
| 3.2.1 |
Subsidiaries
|
All of the direct and indirect subsidiaries of the Company are set forth in Schedule 3.2.1. The Company (i) owns, directly or indirectly, all of the share capital or other
equity interests of each Subsidiary free and clear of any Liens and (ii) all of the issued and outstanding share capital of each Subsidiary are validly issued and are fully paid and are not subject to any calls for additional payments
(non-assessable) and free of pre-emptive and similar rights to subscribe for or purchase securities.
| 3.2.2 |
Organization and Qualification
|
3.2.2.1. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction
of its incorporation or organization (or such equivalent concept to the extent such equivalent concept exists under the law of such jurisdiction), with the requisite power and authority to own and use its properties and assets and to carry on its
business as currently conducted. Neither the Company nor any Subsidiary is in material violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents.
Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing (or such equivalent concept to the extent such equivalent concept exists under the law of such jurisdiction) as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, has not had and would not
have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform its obligations under any of the Transaction Documents (any of (i), (ii) or (iii), a “Material Adverse Effect”), provided that changes in the trading price of the ADSs shall not, in and of itself, constitute a Material
Adverse Effect.
| 3.2.3 |
Authorization; Enforcement
|
The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s shareholders in connection herewith or therewith other than in
connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and
thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as limited by general equitable principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally.
13
| 3.2.4 |
No Conflicts
|
The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and delivery of the New ADSs
and the consummation by the Company of the transactions contemplated under the Transaction Documents do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of association or
incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary or give to others any
rights of termination, amendment, acceleration or cancellation of any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) to which the Company or any Subsidiary is a party or by which any
property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of
any court or Governmental Authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected, except in the
case of each of clauses (ii) and (iii), such as would not have or reasonably be expected to result in a Material Adverse Effect.
| 3.2.5 |
Filings, Consents and Approvals
|
The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal,
state, local or other Governmental Authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant to Section 4.2 of this Agreement,
(ii) the filing with the Commission pursuant to the Registration Rights Agreement, (iii) consent under the Credit Agreement and (iv) such filings as are required to be made under applicable state securities laws, or the laws of Ireland or the rules
of any relevant securities exchange (collectively, the “Required Approvals”).
| 3.2.6 |
Issuance of the Securities
|
The New ADSs are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and not
subject to any calls for additional capital (non-assessable), free and clear of all Liens other than restrictions on transfer provided for in the Transaction Documents.
14
| 3.2.7 |
Capitalization
|
The authorized capitalization of the Company is set forth in the SEC Reports. As of 6 April 2022, 117,493,166 Ordinary Shares were issued and outstanding, all of which are
validly issued, fully paid and non-assessable and not subject to any pre-emptive rights, (iii) 12,555,600 Ordinary Shares are held in treasury, and (v) 32,000,000 shares of Ordinary Shares are reserved for future issuance pursuant to existing
subscription rights. The Company has sufficient authorized capital available and approved for issue in order to issue the New ADS. Except for the New ADSs to be issued and sold hereunder or as disclosed in the SEC Reports, the Company has not
issued any capital stock since its most recently filed periodic report under the Exchange Act, other than: (i) pursuant to the exercise of employee stock options under the Company’s stock option plans; (ii) pursuant to the conversion and/or
exercise of ADS Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act; or (iii) pursuant to the Exchange Agreements and the Warrant Instrument. The Warrant Instrument is the only issued and
outstanding warrant of the Company. Except as otherwise set forth in Schedule 3.2.7, (i) no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by
the Transaction Documents, and (ii) there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for or acquire, any ADS or ADS Equivalents or the share capital of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or
may become bound to issue additional ADSs or ADS Equivalents or share capital of any Subsidiary. Except as Disclosed in Schedule 3.2.7, the issuance and delivery of the New ADSs will not obligate the Company or any Subsidiary to issue ADSs, ADS
Equivalents or other securities to any Person (other than the Purchaser). Except as disclosed in the SEC Reports, there are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise,
conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary and except as Disclosed in Schedule 3.2.7 the issuance and sale of the New ADSs will not result in a right of any
holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. Except as disclosed in the SEC Reports, there are no outstanding securities or instruments of the Company or any Subsidiary that
contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. Except as
disclosed in the SEC Reports, the Company does not have any share appreciation rights or “phantom share” plans or agreements or any similar plan or agreement. All of the outstanding share capital of the Company is duly authorized, validly issued,
fully paid and not subject to any calls for additional payments (non-assessable), has been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any pre-emptive rights or
similar rights to subscribe for or purchase securities. No further approval or authorization of any shareholder, the Board of Directors or others is required for the issuance and delivery of the New ADSs. Except as disclosed in the SEC Reports,
there are no shareholders agreements, voting agreements or other similar agreements with respect to the Company’s share capital to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s shareholders.
15
| 3.2.8 |
SEC Reports; Financial Statements
|
The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including
pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.
As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company
included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been
prepared in accordance with the International Financial Reporting Standards as issued by the International Accounting Standards Board applied on a consistent basis during the periods involved (“IFRS”), except
as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by IFRS, and fairly present in all material respects the financial position of the
Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal year-end audit adjustments.
| 3.2.9 |
Material Changes
|
Since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date
hereof, (i) no event, circumstance or change has occurred that has caused or evidences or would reasonably be expected to result in, either individually or in the aggregate, a Materially Adverse Effect, (ii) the Company has not incurred any
liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial
statements pursuant to IFRS or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company
stock option plans, employment agreements or director’s agreements. The Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the New ADSs contemplated by this
Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists, or is reasonably expected to occur or exist, with respect to the Company or its Subsidiaries or their respective businesses, properties,
operations, assets or financial condition, that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day
prior to the date that this representation is made.
16
| 3.2.10 |
Litigation
|
Except as Disclosed in Schedule 3.2.10, there is no Action pending or threatened in writing with respect to the Company or any of its Subsidiaries by or before any Governmental
Authority or arbitrator (i) that either individually or in the aggregate would reasonably be expected to have a Material Adverse Effect or (ii) that involves this Agreement or the New ADSs. Neither the Company nor any Subsidiary, nor any director
or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. Since 1 January 2020 there has not been, and to the knowledge
of the Company, there is not pending, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of
any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
| 3.2.11 |
Labor Relations
|
Neither the Company nor any of its Subsidiaries has engaged in unfair labor practices and there is no pending or, to the Company’s knowledge, threatened in writing labor actions,
disputes, grievance or arbitration proceedings involving the employees of the Company or any of its Subsidiaries, in each case that would reasonably be expected to have a Material Adverse Effect. There is no material strike or work stoppage in
existence or threatened in writing against the Company or any of its Subsidiaries and to the knowledge of the Company, no union organization activity is taking place. Save as Disclosed in Schedule 3.2.10, to the knowledge of the Company, no
executive officer of the Company or any Subsidiary is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any
other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the
foregoing matters. The Company and its Subsidiaries are in compliance with all Irish, U.S. and any other applicable federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of
employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No employees of the Company and the Subsidiaries are employed on
terms which are of an unduly onerous or unusual nature which would, individually in the aggregate, be reasonably expected to give rise to a Material Adverse Effect. No consultants currently or previously engaged by the Company or the Subsidiaries
has employment status with the Company and/or the Subsidiaries and there is no reasonable risk that any consultant currently or previously engaged by the Company or the Subsidiaries could be misclassified as an employee of the Company and/or the
Subsidiaries which in either case would reasonably be expected to result in a Material Adverse Effect. The Company and the Subsidiaries have correctly classified all individuals performing services for the Company and/or the Subsidiaries as common
law employees, leased employees, independent contractors or agents, as applicable save as would not, in the aggregate, be reasonably expected to result in a Material Adverse Effect.
17
| 3.2.12 |
Pensions
|
Neither the Company nor any of the Subsidiaries operate or have operated any defined benefit pension schemes. Since 1 January 2020, with the exception of the group defined
contribution scheme in place, the Company and/or the Subsidiaries do not and have not operated any other pension schemes and have not participated in any other pension schemes for and on behalf of any employees or directors in Ireland. The Company
and the Subsidiaries have at all times complied with their obligations to provide its current and former employees with access to a standard personal retirement savings accounts (PRSAs) and other related statutory obligations including
non-discriminatory treatment pursuant to and in accordance with the Pensions Act 1990 (as amended). Since 1 January 2020, the Company and the Subsidiaries have not received any written complaint from any pensions authority or any scheme member or
any other party in relation to pensions including, but not limited to, remittance of any employer and/or employee contributions.
| 3.2.13. |
Compliance
|
Neither the Company nor any Subsidiary has notice of or: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or
lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court,
arbitrator or other Governmental Authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any Governmental Authority, including without limitation all foreign, federal, state and local laws relating to Taxes,
environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except, in the case of each of clauses (i), (ii) and (iii) as disclosed in the SEC Reports or as would not have or reasonably be
expected to result in a Material Adverse Effect.
| 3.2.14. |
Material Permits
|
The Company and the Subsidiaries possess all consents, licenses, certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct their respective businesses in such jurisdictions and to such an extent as the Company elects to conduct its business as described in the SEC Reports, except where the failure to possess such permits could not
reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit. Save as
disclosed in Schedule 3.2.14, since 1 January 2020, the Company and the Subsidiaries have at all times complied in all material respects with the requirements of the Health Products Regulatory Authority in the last two years.
18
| 3.2.15. |
Data Protection
|
The Company and the Subsidiaries have at all times complied with the Data Protection Laws in all material respects. Since 1 January 2020, neither the Company nor the Subsidiaries
have in the last two years received any (i) notice, request, correspondence or other communication from any supervisory authority, or been subject to any enforcement action (including any fines or other sanctions), in each case relating to a breach
or alleged breach of their obligations under the Data Protection Laws; or (ii) claim, complaint, correspondence or other communication from a data subject or any other person claiming a right to compensation under the Data Protection Laws, or
alleging any breach of the Data Protection Laws.
| 3.2.16. |
Title to Assets
|
Except as disclosed in the SEC Reports, the Company and the Subsidiaries have good and marketable title to all real property owned by them and good and marketable title in all
personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries, (ii) Liens for the payment of federal, state or other Taxes, for which appropriate reserves have been made therefor in accordance with IFRS,
and the payment of which is neither delinquent nor subject to penalties, and (iii) Liens under the Credit Agreement. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with which the Company and the Subsidiaries are in compliance in all material respects. The Company and the Subsidiaries have complied with all planning permission and building regulations for each property occupied by them and
no enforcement actions have been threatened or pursued against the Company and/or the Subsidiaries save as would not, in either case, be reasonably expected to result in a Material Adverse Effect.
| 3.2.17. |
Intellectual Property
|
3.2.17.1. To the knowledge of the Company, the Company and the Subsidiaries have, or have rights to use, Material Intellectual Property. None of, and neither the Company nor
any Subsidiary has received a written notice that any of, the Material Intellectual Property has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement,
other than in accordance with the terms of the Material Intellectual Property. Neither the Company nor any Subsidiary has received, since the date of the most recent unaudited financial statements included within the SEC Reports, a written notice
of a claim or otherwise has any knowledge that the Material Intellectual Property violate or infringe upon the rights of any person, except as would not have or reasonably be expected to not have a Materially Adverse Effect. To the knowledge of
the Company, the rights in all such Material Intellectual Property are enforceable and there is no existing infringement by another Person of any of the rights in Material Intellectual Property, except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company has no knowledge of any facts that would preclude it from having valid license rights or clear title to the Material Intellectual Property, except as would not have or
reasonably be expected to not have a Material Adverse Effect. The Company has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all Material Intellectual Property that are necessary to conduct its business,
except as would not have or reasonably be expected to not have a Material Adverse Effect.
19
3.2.17.2. All Key Employees and independent contractors (to the extent any such independent contractor was engaged in the creation or development of Material Intellectual
Property of the Company or a Subsidiary) of the Company or a Subsidiary have assigned to the Company or a Subsidiary all Material Intellectual Property and any claim, or any right (whether or not currently exercisable) to any ownership interest in
Material Intellectual Property arising from the services performed for the Company or a Subsidiary by such Persons and all such assignments of Company Registered IP have been recorded. No current or former officers, employees or individual
independent contractors of the Company or a Subsidiary have claimed any ownership interest or rights in any Intellectual Property owned by the Company or a Subsidiary. Save as Disclosed in Schedule 3.2.10, to the knowledge of the Company, there has
been no violation of the Company’s or a Subsidiary’s policies or practices related to protection of Company Intellectual Property Rights or any confidentiality or nondisclosure contract relating to the Intellectual Property owned by the Company or
a Subsidiary. The Company and each Subsidiary has taken commercially reasonable security measures in order to protect the secrecy, confidentiality and value of the Material Intellectual Property.
| 3.2.18. |
Trading Matters
|
All of the material contracts provided in folder 13 of the Data Room, and any sub-folders contained within, are valid, binding, not in dispute, neither the Company nor any of
its Subsidiaries are in material breach of, and the Company does not know of any reason that any of the material contracts provided in folder 13 of the Data Room are likely to be terminated or subject to a dispute save as would not result in or be
reasonably expected to result in a Material Adverse Effect.
| 3.2.19. |
Insurance
|
Folder 8 of the Data Room sets forth a true and correct list of all material insurance policies maintained by the Company and the Subsidiaries. The Company and the Subsidiaries
are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited to,
directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business without a significant increase in cost.
| 3.2.20. |
Transactions With Affiliates and Employees
|
Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the
Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing
of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the
knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of USD 100,000 other than for (i)
payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including share option agreements under any equity plan of the Company. The terms and
conditions of each related party transaction set forth at Item 7B of the Company’s annual report filed on Form 20-F on 30 April 2021 were negotiated at arm’s length and are fair and reasonable to the Company or any Subsidiary.
20
| 3.2.21. |
Certain Fees
|
No brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchaser shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
| 3.2.22. |
Internal Accounting Controls
|
The Company and the Subsidiaries are in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any
and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS
and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the
Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within
the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the Company’s internal control over financial reporting and the Company’s disclosure controls and procedures as of
the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the
Exchange Act the conclusions of the certifying officers about the effectiveness of its internal control over financial reporting and disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date,
there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal
control over financial reporting of the Company or its Subsidiaries. The Company’s disclosure controls and procedures continue to be effective.
21
| 3.2.23. |
Investment Company
|
The Company is not and immediately after receipt of payment for the New ADSs, will not be an “investment company” as defined in, or subject to regulation under, the Investment
Company Act of 1940. The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the Investment Company Act of 1940, as amended.
| 3.2.24. |
Private Placement
|
Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.2, no registration under the Securities Act is required for the offer and sale of
the New ADSs by the Company to the Purchaser as contemplated hereby. The issuance and sale of the New ADSs hereunder does not contravene the rules and regulations of the Trading Market.
| 3.2.25. |
Registration Rights
|
Except as disclosed in the SEC Reports and the rights of the Purchaser under the Registrations Rights Agreement, no Person has any right to cause the Company or any Subsidiary
to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
| 3.2.26. |
Listing and Maintenance Requirements
|
The ADSs are registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect
of, terminating the registration of the ADSs under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration. Except as disclosed in the SEC Reports, the Company has not, in
the 12 months preceding the date hereof, received notice from any Trading Market on which the ADSs are listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of any Trading Market on which
the ADS are listed or quoted.
22
| 3.2.27. |
Solvency
|
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the New
ADSs hereunder and the Note under the Convertible Note Agreement: (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into
account the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the
Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The
Company has no current intention to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no current intention of filing, and
has no knowledge of any facts or circumstances which lead it to believe that it will file, for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction. Neither the Company nor any Subsidiary is in default with
respect to any indebtedness save for such defaults as would not, individually or in the aggregate, result in a Material Adverse Effect, and with “indebtedness” for the purposes of this sentence being (x) any liabilities for borrowed money or
amounts owed in excess of USD 100,000 (other than liabilities accounted for as indebtedness under IFRS to the extent that they relate to accrued expenses, deferred revenue, accrued interest and taxes and other similar expenditure and liabilities
incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, to the extent the same are or should be reflected in the Company’s consolidated balance sheet (or
the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of USD 100,000 due under
leases required to be capitalized in accordance with IFRS.
| 3.2.28. |
Foreign Corrupt Practices
|
Neither the Company nor any Subsidiary, nor any of its officers, directors or employees, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting
on behalf of the Company or any Subsidiary, has (i) directly or indirectly, made, offered or promised to make or offer any payment, loan or transfer of anything of value, including any reward, advantage or benefit of any kind, to or for the benefit
of any Government Official, candidate for public office, political party or political campaign, for the purpose of (a) influencing any act or decision of such Government Official, candidate, party or campaign, (b) inducing such Government Official,
candidate, party or campaign to do or omit to do any act in violation of a lawful duty (c) obtaining or retaining business for or with any person, (d) expediting or securing the performance of official acts of a routine nature, or (e) otherwise
securing any improper advantage; (ii) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (iii) paid, offered or promised to make or offer any bribe, payoff,
influence payment, kickback, unlawful rebate, or other similar unlawful payment of any nature; (iv) created or caused the creation of any false or inaccurate books and records of the Company or any of its Subsidiaries related to any of the
foregoing; or (v) otherwise violated any provision of the FCPA., the UK Bribery Act of 2010, the Irish Anti-Corruption Laws, or any other applicable anti-corruption or anti-bribery law.
| 3.2.29. |
Equity Plans
|
Each option granted by the Company under the Company’s equity plan was granted (i) in accordance with the terms of the Company’s equity plan and (ii) with an exercise price at
least equal to the nominal value of the Ordinary Shares underlying the ADS on the date such option would be considered granted under IFRS and applicable law. No option granted under the Company’s equity plan has been backdated. The Company has
operated the Company’s equity incentive plan, including the making of grants of options over Ordinary Shares, in accordance with all applicable insider trading laws.
23
| 3.2.30. |
Anti-Money Laundering
|
The operations of the Company and its Subsidiaries are and have been conducted at all times in material compliance with applicable financial record-keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary
with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
| 3.2.31. |
Trade Compliance
|
The Company and its Subsidiaries have complied in all material respects at all times and are in compliance in all respects with all applicable Trade Compliance Laws, including
(i) each of Company and its Subsidiaries (A) have not directly or indirectly, exported, re-exported, sold or otherwise transferred (including transfers to foreign nationals located in the United States) any goods, equipment, materials, software,
technology or services subject to Trade Compliance Laws in violation of Trade Compliance Laws and (B) have not unlawfully engaged in any other transactions, with any Designated Person (ii) there is no charge, proceeding or investigation by any
Governmental Authority with respect to a violation of any applicable Trade Compliance Laws that is now pending or has been asserted or threatened with respect to the Company or any of its Subsidiaries; and (iii) none of the Company nor any of its
Subsidiaries has made any voluntary disclosure with respect to a possible violation of Trade Compliance Laws to any Governmental Authority.
| 3.2.32. |
Economic Sanctions and Anti-Terrorism Laws; OFAC Compliance
|
The Company and its Subsidiaries (i) have taken reasonable measures to ensure compliance with applicable Economic Sanctions Laws, Anti-Terrorism Laws and Irish Anti-Terrorism
Laws. Neither the Company nor its Subsidiaries are in violation of any Economic Sanctions Laws, Anti-Terrorism Laws, and Irish Anti-Terrorism Laws.
Neither the Company nor any of its Subsidiaries nor any director, officer, agent, employee or Affiliate of the Company or any of its Subsidiaries, is a person that is, or is
50% or more owned or otherwise controlled by a person that is (i) currently a Designated Person or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of sanctions that broadly prohibit
dealings with that country or territory (currently, Cuba, Iran, North Korea, Sudan, and Syria). The Company will not directly or indirectly use the proceeds of the transactions contemplated by the Transaction Documents, or lend, contribute or
otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any Designated Person or otherwise engaging in any investment, transactions or dealings with
any Designated Person. The Company and its Subsidiaries have taken reasonable measures to ensure compliance with Commission Delegated Regulation (EU) 2022/229 of 7 January 2022 on amending Delegated Regulation (EU) 2016/1675 supplementing Directive
(EU) 2015/849 of the European Parliament and of the European Council.
24
| 3.2.33. |
Takeover Protections
|
The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of
incorporation that is or could become applicable to the Purchaser as a result of the Purchaser and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the
Company’s issuance of the New ADSs and the Purchasers’ ownership of the New ADSs.
| 3.2.34. |
Tax Status
|
The Company and its Subsidiaries each (i) since 1 January 2016 has made or filed all Irish, United States and all other foreign, federal, state and local Tax Returns required
by any jurisdiction to which it is subject, (ii) has paid all Taxes and other governmental assessments and charges that are material in amount and due, whether or not reflected on such Tax Returns and (iii) has set aside on its books provision
reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such Tax Returns apply, (iv) has complied with all Irish, United States and Canadian government assistance schemes with respect to any funds
(including loans, grants, credits and/or deferrals) received by the Company and its Subsidiaries in connection with the COVID-19 pandemic, and (v) has properly withheld and remitted all material appropriate payroll tax amounts in connection with
any amounts paid or owing to any employee, independent contractor, creditor or other third party. There are no unpaid Taxes in any material amount due by the Company or any of its Subsidiaries to the taxing authority of any jurisdiction, and the
officers of the Company or of any Subsidiary know of no basis for any claim otherwise by any such taxing authority, save as would not, in the case of each of (i) to (v), result in a Material Adverse Effect. There are no liens with respect to Taxes
upon any of the assets or properties of the Company or any of its Subsidiaries, other than with respect to Taxes not yet due and payable or for Taxes that are being contested in good faith. The Company has properly complied with all US tax
informational filings (including reporting of all non-US bank accounts). Since 1 January 2016, the Company and its Subsidiaries each (i) (save as Disclosed in Folder 3.0 of the Data Room) has not been audited for any Taxes, and has not been
notified of any upcoming audits of Taxes, (ii) has not extended the statute of limitations on the assessment of Taxes with respect to any tax return, (iii) is not liable for taxes of any other person under United States Treasury Regulation Section
1.1502-6 (or any similar foreign, federal, state or local law), or as a result of successor or transferee liability, and (iv) has properly disclosed all reportable transactions under Treasury Regulation Section 1.6011-4(b) (or any similar foreign,
federal, state or local law).
25
| 3.3. |
Representations and Warranties of the Purchaser
|
The Purchaser hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case
they shall be accurate as of such date):
| 3.3.13. |
Organization; Authority
|
The Purchaser is duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of their incorporation or formation with full right,
corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out their obligations hereunder and thereunder. The
execution and delivery of the Transaction Documents and performance by the Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or
similar action, as applicable, on the part of the Purchaser. Each Transaction Document to which they are a party has been duly executed by the Purchaser, and when delivered by the Purchaser in accordance with the terms hereof, will constitute the
valid and legally binding obligation of the Purchaser , enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
| 3.3.14. |
Understandings or Arrangements
|
The Purchaser is acquiring the New ADSs for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the
distribution of such New ADSs. The Purchaser is acquiring the New ADSs hereunder for investment purposes.
| 3.3.15. |
Purchaser Status
|
At the time the Purchaser was offered the New ADSs, it was, and as of the date hereof it is either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.
| 3.3.16. |
Experience of the Purchaser
|
The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the New ADSs, and has so evaluated the merits and risks of such investment.
| 3.3.17. |
Certain Transactions and Confidentiality
|
Other than consummating the transactions contemplated hereunder, the Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with the
Purchaser, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that the Purchaser first received notice of the transaction contemplated
hereunder (written or oral) from the Company or any other Person representing the Company and ending immediately prior to the execution hereof. Other than to other Persons party to this Agreement or to the Purchaser’s representatives, including,
without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, the Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).
26
| 3.3.18. |
Access to Information
|
Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto), and the SEC Reports and has been
afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and risks of
investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.
| 3.3.19. |
Purchaser Independence
|
The Purchaser acknowledges that it is acting independently of any other party that has an interest in the ADSs (an “Interested Party”)
in connection with the issuance of the New ADS hereunder and is not acting in concert with any Interested Party for the purposes of the Irish Takeover Panel Act, 1997, Takeover Rules, 2013, and that the Purchaser will not, immediately after
delivery of the New ADS, own or be interested in 30% or more of the voting rights of the Company as at the Closing Date.
| 3.3.20. |
General Solicitation
|
The Purchaser is not purchasing the New ADSs as a result of any advertisement, article, notice or other communication regarding the New ADSs published in any newspaper,
magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of the Purchaser, any other general solicitation or general advertisement.
The Company acknowledges and agrees that the representations contained in Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s
representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement, any other
Transaction Document or the consummation of the transaction contemplated hereby ad thereby.
| 3.4. |
General Disclosure
|
Notwithstanding any other provision of this Agreement, the terms and contents of each of the Credit Agreement, the SEC Reports and the Financial Diligence Documents shall be
deemed part of Section 3.2 and shall qualify each of the representations and warranties set out therein.
| 4. |
| 4.1. |
Furnishing of Information; Public Information.
|
Until the Purchaser no longer owns any New ADSs, the Company covenants to maintain the registration of the Ordinary Shares (or if applicable, the New ADSs representing the
Ordinary Shares) under Section 12(b) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the
Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.
27
At any time during the period commencing from the six (6) month anniversary of the Closing and ending at such time that all of the New ADSs may be sold without the requirement
for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if either: (i) a Registration Statement with respect to the Registrable Securities is not in effect, or (ii) the Company
shall fail for any reason to satisfy the current public information requirement under Rule 144(c) (a “Public Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company
shall pay to the Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the New ADSs, an amount equal to one percent (1%) of the aggregate Share Consideration of
such Purchaser’s New ADSs on the day of a Public Information Failure and on every thirtieth (30th) day (pro-rated for periods totalling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured and
(b) such time that such public information is no longer required for the Purchaser to transfer the New ADSs pursuant to Rule 144. The payments to which a Purchaser shall be entitled pursuant to this Section 4.1 are referred to herein as “Public
Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after
the event or failure giving rise to the Public Information Failure Payments is cured. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall have the right to pursue
all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.
| 4.2. |
Securities Laws Disclosure; Publicity
|
The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current Report on
Form 6-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the Exchange Act. The Company and the Purchaser shall consult with each other in issuing any other press releases with respect to
the transactions contemplated hereby, and neither the Company nor the Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of the
Purchaser, or without the prior consent of the Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing
party shall promptly provide the other party with prior notice of such public statement or communication.
| 4.3. |
Shareholder Rights Plan
|
No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that the Purchaser is an “Acquiring Person” under any control share
acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that the Purchaser could be deemed to trigger the
provisions of any such plan or arrangement, by virtue of receiving New ADSs under the Transaction Documents.
28
| 4.4. |
Use of Proceeds
|
The Company shall use the proceeds received from the issuing of the New ADSs for general corporate purposes.
| 4.5. |
Reservation of Ordinary Shares
|
As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of pre-emptive rights, a sufficient number of
Ordinary Shares for the purpose of enabling the Company to deliver the New ADSs and shall ensure compliance with the Irish Companies Act 2014 in all respects in connection with the New ADSs.
| 4.6. |
Listing of ADS
|
The Company hereby agrees to use best efforts to maintain the listing or quotation of the ADSs on the Trading Market on which the ADSs are currently listed, and concurrently
with the Closing, the Company shall in accordance with the terms and conditions of the Registration Rights Agreement apply to list or quote all of the New ADSs on such Trading Market and promptly secure the listing of all of the New ADSs on such
Trading Market. The Company will take all action reasonably necessary to continue the listing and trading of its ADS on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or
rules of the Trading Market.
| 4.7. |
Updating of Company Register.
|
Within ninety (90) days after the Closing Date, the Company will use all reasonable endeavours to update the statutory share registers of the Irish Subsidiaries to reflect the
current ownership of the Irish Subsidiaries.
| 4.8. |
Indemnification of Purchaser
|
Subject to the provisions of this Section 4.8, the Company will indemnify and hold the Purchaser and its directors, officers, shareholders, members, partners, employees and
agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors, officers, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any
other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, claims, damages, costs and expenses including all judgments, amounts paid in settlements,
court costs and reasonable attorneys’ fees and costs of investigation arising out of any third party claims (collectively, “Damages”) that any such Purchaser Party may suffer or incur as a result of any
breach of any of the representations, warranties, covenants, specific indemnities in this Section 4.8 or agreements made by the Company in this Agreement or in the other Transaction Documents. If any action shall be brought against any Purchaser
Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing
reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such
Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in
such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable
fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall
not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by
such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when
bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to
pursuant to law.
29
| 5. |
| 5.1. |
For so long as the Purchaser has a Qualified ADS Holding, it shall be entitled to nominate two (2) individuals for consideration by the nomination committee of the Board of Directors (the “Nomination
Committee”) for appointment as directors of the Company (the “SPA Directors”).
|
| 5.2. |
The Nomination Committee shall consult with and reasonably consider the views of the Purchaser in considering such SPA Directors (but, for the avoidance of doubt, shall not be bound by any such views). The Purchaser shall use reasonable
efforts to ensure that such SPA Directors and the Convertible Note Directors, collectively, have the experience, skill and cost appropriate to the Company, including, without limitation, that at least three of the SPA Directors and
Convertible Note Directors shall be independent and have substantial public and/or private investment experience, and that one of such directors has substantial experience at a diagnostics testing business having annualized revenues greater
than USD 1 billion.
|
| 5.3. |
When considering the SPA Directors, the Nomination Committee shall take into consideration the need for the Company to retain its Irish tax status and status as a foreign private issuer under applicable federal securities laws.
|
| 5.4. |
The Company and the Purchaser agree and acknowledge that in order for a SPA Director to be considered 'independent', that director must at all times meet the standards set out in the NASDAQ Stock Market Rules.
|
| 5.5. |
Any vacancies created by the resignation, removal or death of a SPA Director elected following due nomination pursuant to this Agreement shall be filled subject always to the process for nomination of an SPA Director set out in this
clause 5.
|
| 6. |
| 6.1. |
Termination
|
In the event the Company has satisfied all conditions to Closing set forth Section 2.3.3 (other than those conditions that by their nature are to be satisfied at the Closing) and
this Agreement is not consummated by no later than 11.59pm (Eastern Time) on the Long Stop Date by virtue of the failure by the Purchaser to make the payments contemplated by Section 2.2.2(b) of this Agreement, the Long Stop Date shall be deemed to
be extended to the Outer Date. In the period between the Long Stop Date and the Outer Date, this Agreement may only be terminated by the Company in writing to the Purchaser and, thereafter, by the Company or the Purchaser where Closing has not
occurred; provided, however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties). In the event the Purchaser has satisfied all conditions to Closing set forth in Section 3.2.3 hereof
(other than those conditions that by their nature are to be satisfied at the Closing), this Agreement may be terminated by the Purchaser by written notice to the Company, if the Closing has not been consummated on or before the Long Stop Date (or
the Outer Date, if applicable) by virtue of the failure by the Company to satisfy the conditions to Closing set forth in Section 2.3.3 (other than those conditions that by their nature are to be satisfied at the Closing) provided, however, that no
such termination will affect the right of any party to sue for any breach by any other party (or parties).
30
| 6.2. |
Fees and Expenses
|
Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts,
if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay, or procure payment of, all Transfer Agent fees, stamp Taxes and other
Taxes and duties levied in connection with the delivery of any New ADSs to the Purchaser pursuant to this Agreement.
| 6.3. |
Entire Agreement
|
The Transaction Documents, together with the exhibits and schedules thereto contain the entire understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
| 6.4. |
Notices
|
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the
earliest of: (a) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 pm (New
York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature
pages attached hereto on a day that is not a Trading Day or later than 5:30 pm (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service
or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
| 6.5. |
Amendments; Waivers
|
No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the
Purchaser, or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the
exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of the Purchaser shall require the prior written consent of the Purchaser. Any amendment effected in
accordance with this Section 6.5 shall be binding upon the Purchaser and holder of New ADSs and the Company.
31
| 6.6. |
Headings
|
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
| 6.7. |
Successors and Assigns
|
| 6.7.1. |
This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of the Purchaser (other than by merger). The Purchaser may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Company, provided that the Purchaser may, for a period of fifteen (15)
Business Days from the date of this Agreement assign this Agreement to any Affiliate of the Purchaser if such Affiliate acquires the New ADSs from the Purchaser and agrees in writing to be bound by the provisions of this Agreement that
apply to the Purchaser (the “Approved Assignee”).
|
| 6.7.2. |
Where an Approved Assignee ceases at any time to be an Affiliate of the Purchaser, such Approved Assignee shall assign this Agreement to an Affiliate of the Purchaser within five (5) Business Days of the Approved Assignee ceasing to be
an Affiliate of the Purchaser.
|
| 6.8. |
No Third-Party Beneficiaries
|
This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in this Section 6.8.
| 6.9. |
Governing Law
|
All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance
with the laws of Ireland, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any
other Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in Ireland. Each party hereby irrevocably
submits to the exclusive jurisdiction of Ireland for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the
Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an
inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight
delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations
of the Company under Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and
prosecution of such Action or Proceeding.
32
| 6.10. |
Survival
|
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities for six (6) years following the Closing Date with regards to
the Special Representations and three (3) years following the Closing Date with regard to any other representations and warranties. For the avoidance of doubt, any Purchaser Claim made pursuant to this Agreement must be notified to the Company
within the period ending on the third anniversary of the date of this Agreement or the sixth anniversary of the date of this Agreement with respect to any Special Representations.
| 6.11. |
Execution
|
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of
a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an
original thereof.
| 6.12. |
Severability
|
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and
employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
| 6.13. |
Replacement of Securities
|
If any certificate or instrument evidencing any New ADS is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for
and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction. The
applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement New ADS.
33
| 6.14. |
Remedies
|
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Purchaser and the Company will be entitled to
specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to
waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate. To the extent that the Company makes a payment or payments to the Purchaser pursuant to any Transaction
Document or the Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set
aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
| 6.15. |
Saturdays, Sundays, Holidays, etc
|
If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken
or such right may be exercised on the next succeeding Business Day.
| 6.16. |
Construction
|
The parties agree that each of them and / or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule
of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share
prices and ADS in any transaction document shall be subject to adjustment for reverse and forward share splits, share dividends, share combinations and other similar transactions of the ADS that occur after the date of this Agreement.
| 6.17. |
Waiver of jury trial
|
In any action, suit, or proceeding in any jurisdiction brought by any party against any other party, the parties each knowingly and intentionally, to the greatest extent
permitted by applicable law, hereby absolutely, unconditionally, irrevocably and expressly waives forever trial by jury.
| 6.18. |
No Recourse Against Others
|
No director, officer or employee of the Company or the Subsidiaries shall have any liability for any obligations of the Company under this Agreement or any claim based on, in
respect of, or by reason of, such obligations or their creation. The Purchaser, by entering into this Agreement, waives and releases all such liability. The waiver and release are part of the consideration for this Agreement.
(Signature Pages Follow)
34
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
TRINITY BIOTECH PLC
By: /s/ Ronan O’Caoimh
Name: Ronan O’Caoimh
Title: CEO
MICO IVD HOLDINGS, LLC
By: /s/ Seon Kyu Jeon
Name: Seon Kyu Jeon
Title: Manager
35
Exhibit 99.3
EXECUTION VERSION
DATED APRIL [•], 2022
|
TRINITY BIOTECH PUBLIC LIMITED COMPANY
|
REDEEMABLE UNSECURED CONVERTIBLE LOAN NOTE
This Instrument and all Notes issued hereunder are subject to the provisions of a
Subordination Agreement (as defined herein)
|
MATHESON
70 Sir John Rogerson’s Quay
Dublin 2
Ireland
TEL + 353 1 232 2000
FAX + 353 1 232 3333
55514490.2
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CONTENTS
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THIS REDEEMABLE UNSECURED CONVERTIBLE LOAN NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN
SUBORDINATION AGREEMENT (THE “SUBORDINATION AGREEMENT”) DATED AS OF APRIL 8, 2022 AMONG MICO IVD HOLDINGS LLC, A LIMITED LIABILITY COMPANY ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE (“MICO”), AS SUBORDINATED LENDER AND PERCEPTIVE CREDIT
HOLDINGS III, LP AS AGENT ON BEHALF OF SENIOR LENDERS (“SENIOR AGENT”), TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE OBLIGORS PURSUANT TO THAT CERTAIN CREDIT AGREEMENT AND GUARANTY DATED AS OF DECEMBER 15, 2021 AMONG THE BORROWERS PARTY
THERETO (“BORROWERS”), THE GUARANTORS FROM TIME TO TIME PARTY THERETO (“GUARANTORS” AND TOGETHER WITH THE BORROWERS, THE “OBLIGORS”), SENIOR AGENT AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS SUCH CREDIT AGREEMENT AND GUARANTY MAY BE
AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME AND TO INDEBTEDNESS REFINANCING THE INDEBTEDNESS UNDER THAT AGREEMENT AS CONTEMPLATED BY THE SUBORDINATION AGREEMENT; AND MICO UNDER THIS JUNIOR CONVERTIBLE NOTE, BY ITS ACCEPTANCE
HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
THIS INSTRUMENT is made on April [•], 2022 BY TRINITY BIOTECH PLC a public limited company incorporated under the
laws of Ireland (registration number 183476) having its registered office at IDA Business Park, Bray, Wicklow, Ireland (the “Company”).
WHEREAS:
| A. |
The Company has pursuant to its memorandum and articles of association and by a resolution of the Board of Directors (as hereinafter defined) passed on April 8, 2022 resolved
that up to USD 20,000,000 unsecured convertible loan notes be constituted under this Instrument (the “Convertible Note Financing”).
|
| B. |
In conjunction with this Instrument, the Company and MiCo IVD Holdings LLC, a limited liability company organized under the laws of the State of Delaware, USA (the “Initial
Noteholder”) intend to enter into a Securities Purchase Agreement (the “Securities Purchase Agreement”) pursuant to which, among other things, the Initial Noteholder will make an investment
in the Company in the amount of approximately USD 25,177,155.75 (the “Equity Investment”). The Equity Investment shall be effected on or around the date hereof.
|
NOW THIS INSTRUMENT witnesses and the Company hereby agrees and declares as follows:
| 1 |
Interpretation
|
| 1.1 |
Definitions
|
In this Instrument and in the Schedules unless the context otherwise requires or unless otherwise specified:
“Action” means any action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign);
1
“Adjustment Event” means any or all of the following, at any time, or by reference to any record date, while the Notes remain in issue:
| (a) |
any allotment or issue of Ordinary Shares by the Company by way of capitalisation of profits or reserves;
|
| (b) |
any cancellation, purchase or redemption of Ordinary Shares, or any reduction or repayment of Ordinary Shares, by the Company; and
|
| (c) |
any sub-division or consolidation of Ordinary Shares by the Company;
|
“ADSs” means the American Depositary Shares of the Company, with each ADS being represented by one American Depositary Receipt (“ADR”), issued by the Depositary each of which in turn represents four Ordinary Shares of the Company;
“Board of Directors” means the board of directors of the Company for the time being constituted;
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York, Dublin,
Ireland or Seoul, South Korea are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”,
“shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any Governmental Authority so long as the electronic funds transfer systems (including for
wire transfers) of commercial banks in The City of New York, Dublin, Ireland and Seoul, South Korea generally are open for use by customers on such day;
“Certificate” means a certificate for Notes issued in accordance with clause 12 (Certificates)
and in the form or substantially in the form set out in Schedule 1;
“Concert Party” means a person taken as acting in concert with another for the purposes of the Irish Takeover Panel Act 1997 (as
amended), Takeover Rules, 2013;
“Conversion Event” has the meaning set out in clause 5.1;
“Conversion Notice” has the meaning set out in clause 5.1;
“Convertible Note Directors” shall have the meaning assigned to such term in clause 17.1;
“Convertible Note Financing” shall have the meaning ascribed to such term in Recital A;
“Damages” has the meaning ascribed in the Securities Purchase Agreement;
“Data Room” means the virtual data room hosted by Intralinks entitled "Project Creation"
opened to the Noteholder in March 2022 in connection with the transactions to be effected pursuant to the terms of this Agreement and closed to the Noteholder and any other Person as at 5pm EST on April 8, 2022;
2
“De Minimis Claim” means any claim by the Purchaser for breach of a representation or warranty under either this Agreement or the
Securities Purchase Agreement where the amount of Damages in respect of such claim is less than USD 250,000, save that in the case of a claim arising out of a breach of the Special Representations a “De Minimis Claim” shall be any claim where the
amount of Damages in respect of such claim is less than USD 20,000;
“Depositary” means The Bank of New York Mellon, a New York banking corporation, as depositary for the ADSs and the issuer of the ADRs;
“Directors” means the directors of the Company from time to time;
“Event of Default” has the meaning set out in clause 9.1;
“Financial Diligence Documents” means the documents set out in Folder 3.35 of the Data Room
“Interest Payment Date” has the meaning set out in clause 4.6;
“Investment” has the meaning ascribed in the Securities Purchase Agreement;
“Material Adverse Change” and “Material Adverse Effect” mean a material adverse change in or
effect on (a) the business, condition (financial or otherwise), operations, performance, assets, prospects or property of the Company and its subsidiaries, taken as a whole, (b) the ability of the Company to perform its obligations under this
Instrument as and when they become due, or (c) the legality, validity, binding effect or enforceability of this Instrument or the rights and remedies of any Noteholder hereunder;
“Material Subsidiary” means any subsidiary of the Company that generates 5% or more of the Company’s earnings before interest, taxes,
depreciation, and amortisation as determined pursuant to applicable International Financial Reporting Standards by reference to the Company’s most recently published consolidated annual financial statements;
“Noteholder Directors” has the meaning set out in clause 17.1;
“Noteholders” means the several persons for the time being entered in the Register as holders of Notes;
“Noteholder Claim” means any claim by the Noteholder for breach of a representation or warranty under either this Agreement or the
Securities Purchase Agreement which is not a De Minimis Claim;
“Notes” means the USD 20,000,000 unsecured convertible loan notes of the Company constituted by this Instrument or as the case may be
the amount thereof for the time being issued and outstanding;
“Ordinary Shares” means the “A” ordinary shares of the Company, nominal value USD 0.0109 per share, and any other class of securities
into which such securities may hereafter be reclassified or changed;
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited
liability company, joint share company, government (or an agency or subdivision thereof) or other entity of any kind;
3
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or
partial proceeding, such as a deposition), whether commenced or threatened;
“Qualified ADS Holding” means 15% of the Voting Rights from time to time;
“Qualified Note Holding” means an aggregate holding of USD 10,000,000 or more between the amount of the (i) principal value of Notes
currently held plus (ii) the equivalent principal value of Notes previously converted pursuant to the terms of this Agreement into Conversion Shares and currently held;
“Reduced Qualified Note Holding” means an aggregate holding of less than USD 10,000,000 but more than USD 5,000,000 between the amount
of the (i) principal value of Notes currently held plus (ii) the equivalent principal value of Notes previously converted pursuant to the terms of this Agreement into Conversion Shares and currently held;
“Register” means the register of the Noteholders kept by the Company pursuant to clause 14 (Register
of Noteholders );
“Registrable Securities” has the meaning ascribed to it in the Registration Rights Agreement;
“Registration Rights Agreement” has the meaning ascribed in the Securities Purchase Agreement;
“Registration Statement” has the meaning ascribed in the Securities Purchase Agreement;
“Required Approvals” shall have the meaning ascribed in the Securities Purchase Agreement;
“Required WP Approval” has the meaning set out in clause 6.2.5;
“Secretary” means the secretary of the Company from time to time;
“SEC Reports” shall have the meaning ascribed to such term in the Securities Purchase Agreement;
“Securities Purchase Agreement” shall have the meaning assigned to such term in the Recitals;
“Credit Agreement” means that certain loan agreement by and between the applicable Senior Lender and the Company, as amended;
“Senior Lender” means Perceptive Credit Holdings III, LP (“Perceptive”) or any other lender
provided that such lender enters into a subordination agreement with the Noteholder in the substantially same form as the Subordination Agreement;
4
“Solvent” means that based on the consolidated financial condition of the Company as of the date hereof, after giving effect to the
receipt by the Company of the proceeds from the sale of the New ADSs under the Securities Purchase Agreement and the Notes hereunder: (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in
respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed
to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current
cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its
liabilities when such amounts are required to be paid;
“Special Representations” shall have the meaning ascribed in the Securities Purchase Agreement as it applies to the warranties and
representations in this Agreement in accordance with clause 8.2;
“Subordination Agreement” means (A) the subordination agreement dated on or about the date of the Instrument by and among (1) the
Noteholder (as subordinated creditor), (2) the Company (as borrower) and (3) Perceptive (as lender) or (B) any other subordination agreement entered into from time to time, as applicable, by and among (1) the Noteholder (as subordinated creditor),
(2) the Company (as borrower) and (3) such Senior Lender;
“Subsidiary” shall have the meaning ascribed in the Securities Purchase Agreement;
“Tax” means all forms of taxation, duties, imposts, levies, withholding, rates and charges of whatsoever nature whether of Ireland or
elsewhere in any part of the world wherever and whenever created or imposed and any taxes, duties, imposts or levies supplementing or replacing any of the foregoing and any and all interests, charges, surcharges, fines and penalties in relation to
any of the foregoing;
“USD” means US Dollars, being the lawful currency of the United States; and
“Voting Rights” means voting rights in the Company, as determined pursuant to the Irish Takeover Panel Act, 1997, Takeover Rules, 2013.
| 2 |
[Reserved]
|
| 3 |
Interpretation Generally
|
In this Instrument and in the Schedules, unless the context otherwise requires or unless otherwise specified:
| 3.1.1 |
any reference to any statute, statutory provision, or to any order or regulation shall be construed as a reference to that statute, provision, order or regulation as extended, modified, replaced or re-enacted from time to time (whether
before or after the date of this Instrument) and all statutory instruments, regulations and orders from time to time made thereunder or deriving validity therefrom (whether before or after the date of this Instrument);
|
5
| 3.1.2 |
words denoting any gender include all genders and words denoting the singular include the plural and vice versa;
|
| 3.1.3 |
all references to clauses and schedules are to clauses of and schedules to this Instrument;
|
| 3.1.4 |
headings are for convenience only and shall not affect the interpretation of this Instrument;
|
| 3.1.5 |
words such as “hereunder”, “hereto”, “hereof” and “herein” and other words commencing with “here” shall unless the context clearly indicates to the contrary refer to the whole of this Instrument and not to any particular section, clause
or paragraph hereof;
|
| 3.1.6 |
in construing this Instrument general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things and
general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words and any reference to the word “include” or “including” is to be
construed without limitation;
|
| 3.1.7 |
any reference to “Instrument” or any other document or to any specified provision of this Instrument or any other document is to this Instrument, that document or that provision as in force for the time being and as amended from time to
time in accordance with the terms of this Instrument or that document;
|
| 3.1.8 |
any reference to a person shall be construed as a reference to any individual, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two
or more of the foregoing;
|
| 3.1.9 |
any reference to a person includes his successors, personal representatives and permitted assigns;
|
| 3.1.10 |
“writing” or any similar expression includes transmission by facsimile or by e-mail delivery of a “.pdf” format data file;
|
| 3.1.11 |
if any action or duty to be taken or performed under any of the provisions of this Instrument would fall to be taken or performed on a day which is not a Business Day such action or duty shall be taken or performed on the Business Day
next following such day;
|
| 3.1.12 |
for the avoidance of doubt, any reference to Ireland does not include Northern Ireland; and
|
| 3.1.13 |
any reference to “redemption” includes purchase and repayment and the words “redeem”, “redeemed”, “redemption”, “redeemable” or any such similar words shall be construed accordingly.
|
| 3.2 |
Schedules
|
The contents of the Schedules form an integral part of this Instrument and shall have as full effect as if they were incorporated in the body of this Instrument and the
expressions “this Instrument” and “the Instrument” as used in the Schedules shall mean this Instrument and any reference to “this Instrument” shall be deemed to include the Schedules.
6
| 4 |
Amount and Status of Notes
|
| 4.1 |
Amount of Notes
|
The principal amount of the Notes is limited to USD 20,000,000.00. The Notes shall be issued fully paid up in nominal amounts and integral multiples of USD 1,000.00, subject
to and with the benefit of the provisions of this Instrument. All the obligations and covenants contained in this Instrument shall be binding on the Company and the Noteholders and all persons claiming through them.
| 4.2 |
Issue of Notes
|
The Notes shall be issued at such time or times and on such terms and either for cash or such other consideration as the Board of Directors shall determine.
| 4.3 |
Ranking
|
The Notes shall rank pari passu without any preference or priority over one another as unsecured obligations of the
Company.
| 4.4 |
Non-Listing
|
No application has been or will be made to any stock exchange for the listing of, or for permission to deal in, all or any of the Notes.
| 4.5 |
Subordination
|
Notwithstanding anything herein to the contrary, the Notes (and the terms of the Notes including, for the avoidance of doubt, the Instrument) are, at all times, subject to the
terms of the Subordination Agreement.
| 4.6 |
Interest
|
The Notes will carry interest at the rate of 1.5% per annum on the principal amount of the Notes (the “Interest Rate”). Such interest
will accrue from day to day and shall be computed based upon a 360-day year. Interest will be payable in cash by quarterly instalments in arrears on the last Business Day in each quarter
of each year (each an “Interest Payment Date”) and the first payment of interest will be made on the date set out in the relevant Certificate in respect of the period from the date of first issue of the Notes
to such first payment date.
| 5 |
Conversion
|
| 5.1 |
Where either (i) the volume weighted average price of the ADSs on the NASDAQ Global Select market is at or above USD 3.24 for any five consecutive NASDAQ trading days or (ii) at the discretion of the Noteholders from time to time, upon
written notice (in each instance, a “Conversion Notice”) from such Noteholders to the Company (in each case, a “Conversion Event”) then, subject to the terms of
clause 6, on the third NASDAQ trading day following the occurrence of the Conversion Event (the “Conversion Date”) the Notes held by each Noteholder shall automatically, and without any further action
on the part of the Noteholder, convert into ADSs (the “Conversion Shares”) in the manner set out in this clause 5.
|
7
| 5.2 |
Subject to clauses 6 and 10, on the Conversion Date the principal amount of Notes then held by each Noteholder shall be converted into a number of Conversion Shares equal to the product of the principal value of such Noteholder’s
outstanding Notes divided by USD 3.24 (“Conversion Price”). When issued, the Ordinary Shares underlying the Conversion Shares shall be duly authorised, be free from pre-emption or similar rights, be
freely transferable (subject to the terms of the articles of association of the Company and applicable law), be validly allotted and issued and fully paid, rank pari passu in all respects with, and be identical to, each other and be free
from any encumbrance.
|
| 5.3 |
No fractional ADSs or scrip representing fractions of ADSs will be delivered on a conversion of the Notes and the number of shares issuable to any Noteholder shall be rounded down to the nearest whole ADS.
|
| 5.4 |
Upon the allotment and issue of the Ordinary Shares underlying the Conversion Shares pursuant to this clause 5:
|
| 5.4.1 |
the principal amount of all Notes converted shall be deemed to have been repaid in full;
|
| 5.4.2 |
without requiring the Noteholder to make any actual payment to the Company hereunder, the Notes shall be applied in a subscription by the Noteholder for the number of Conversion Shares calculated in accordance with the provisions of
clause 5.2; and
|
| 5.4.3 |
the Company shall immediately thereafter be unconditionally, absolutely and irrevocably released and discharged by the Noteholder from its obligations under this Instrument in relation to such converted Notes, save in respect of any
accrued but unpaid interest related to said Notes.
|
| 5.5 |
Subject to the provisions of the Irish Companies Act 2014, the Company shall maintain such sufficient authorised but unissued share capital and all requisite shareholder and director authorisations as is required to convert the Notes
pursuant to the terms of this Instrument.
|
| 5.6 |
Upon conversion of the Notes in accordance with this clause 5, each Noteholder shall physically deliver to the Company such Noteholder’s Notes and Certificates without executing an instrument of transfer.
|
| 5.7 |
The Notes and Certificates physically delivered to the Company by a Noteholder in accordance with clause 5.6 shall be cancelled by the Company.
|
| 6 |
Conversion Limitation
|
| 6.1 |
The Company shall not effect the conversion of any portion of the Notes, and the Noteholder shall not have the right to convert any portion of the Notes pursuant to the terms and conditions of the Notes and any such conversion shall be
null and void and treated as if never made, to the extent that after giving effect to such conversion the Noteholder, together with its Concert Parties collectively would beneficially own in excess of 29.99% (the “Maximum Percentage”) of the Voting Rights outstanding immediately after giving effect to such conversion without the prior waiver by the Irish Takeover Panel of the requirement to make a mandatory general offer pursuant to
the Irish Takeover Panel Act, 1997, Takeover Rules, 2013 (the “Whitewash Procedure”).
|
8
| 6.2 |
The Company and the Board of Directors hereby covenant to the Noteholder, following the occurrence of a Conversion Event and at the written request of the Noteholder, to:
|
| 6.2.1 |
submit an application to the Irish Takeover Panel in respect of the Whitewash Procedure;
|
| 6.2.2 |
provide all relevant information readily available to the Company and the Board of Directors to the Irish Takeover Panel in relation to the Whitewash Procedure;
|
| 6.2.3 |
prepare a circular to its shareholders of the kind contemplated by section 4 of the Whitewash Guidance Note appended to the Irish Takeover Panel Act, 1997, Takeover Rules, 2013;
|
| 6.2.4 |
satisfy or comply with the conditions imposed by the Irish Takeover Panel on the Whitewash Procedure to the extent within its powers and ability to do so; and
|
| 6.2.5 |
convene a general meeting of the Company for the purposes of seeking customary approvals of independent shareholders of the Company (together with the approval by the Irish Takeover Panel pursuant to the Irish Takeover Panel Act, 1997,
Takeover Rules, 2013, are hereinafter referred to as the “Required WP Approval”).
|
| 6.3 |
The Company shall consult with and reasonably consider the views of the Noteholder in preparing the shareholder circular referred to in clause 6.1.1 (but, for the avoidance of doubt, shall not be bound by any such views),
|
| 6.4 |
On the occurrence of a Conversion Event the Company shall promptly notify each Noteholder of the then current number of outstanding Voting Rights (the “Reported Outstanding Vote Number”). As soon
as possible following the receipt of the Reported Outstanding Vote Number each Noteholder shall promptly, and in any event within 12 hours, confirm by written notice to the Company (“Share Notice”)
(i) the amount (if any) of Voting Rights by which the conversion of its Notes would otherwise cause the Noteholder’s and the Noteholder’s Concert Parties’ aggregate Voting Rights to exceed the Maximum Percentage and the reduced number of
Conversion Shares to be delivered to the Noteholder in the event the Company does not obtain the Required WP Approval, (ii) the principal value of the Notes to be converted and (iii) the account to which the Conversion Shares are to be
delivered.
|
| 6.5 |
On receipt of a Share Notice the number of Conversion Shares to be delivered by the Company on the Conversion Date pursuant to clause 5 shall (where relevant in the event the Company does not obtain any of the Required WP Approval) be
reduced to the number of ADSs specified in the Share Notice and a corresponding proportion of the Noteholder’s Notes shall remain unconverted and extant (the “Remaining Notes”) pursuant to the terms
of this Instrument.
|
| 6.6 |
On and following the Conversion Date a holder of Remaining Notes may (i) transfer some or all of its Remaining Notes pursuant to the terms of clause 16 and/or (ii) issue a further Conversion Notice to the Company from time to time such
that some or all of such Remaining Notes are converted into ADSs and the terms of clauses 5 and 6 shall apply, mutatis mutandis, to such notice (including, for the avoidance of doubt, clause 6.1).
|
| 6.7 |
For any reason at any time, upon the written or oral request of the Noteholder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Noteholder the number of Voting Rights then
outstanding.
|
9
| 6.8 |
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this clause 6 to the extent necessary to correct this clause 6 (or any portion of this clause 6) which
may be defective or inconsistent with the intended beneficial ownership limitation contained in this clause 6 or to make changes or supplements necessary or desirable to properly give effect to such limitation.
|
| 6.9 |
The limitation contained in this paragraph may not be waived and shall apply to a successor holder of the Note.
|
| 6.10 |
The Noteholder hereby covenants to timely provide all relevant information to the Company for the purposes of any Whitewash Procedure.
|
| 7 |
Redemption of Notes
|
| 7.1 |
Repayment
|
All Notes not previously redeemed by the Company under any of the provisions of this Instrument will be repaid at par together with accrued interest (after deduction of tax)
or any other amounts owed hereunder on April [•], 20291.
| 7.2 |
Payment to Noteholders
|
As and when the Notes or any part of the Notes are redeemed under the provisions of this Instrument, the Company shall pay to the Noteholders the full principal amount of the
Notes to be repaid together with any accrued interest on such Notes (after deduction of tax). For the avoidance of doubt, notwithstanding anything in this Clause 7 to the contrary, the rights to redeem and the Notes are, at all times, subject to
the terms of the Subordination Agreement.
| 8 |
Representations
|
| 8.1 |
Limitations on representations and warranties
|
| 8.1.1 |
For the avoidance of doubt and notwithstanding any other provision of this Agreement, in no circumstances shall the Company be liable in respect of any De Minimis Claim.
|
| 8.1.2 |
The Company shall not be liable in respect of any and all Noteholder Claims unless and until the aggregate amount of Damages with respect to any or all Noteholder Claims (other than De Minimis Claims) exceeds USD 2,000,000 (the “Basket Amount”) in which case the Company shall be liable for the whole of such aggregate amount; provided, however, that the Basket Amount shall not apply to any Noteholder Claims: (A) arising out of any
breaches of the Special Representations or (B) based on fraud or intentional misrepresentation.
|
| 8.1.3 |
The Noteholder shall not be entitled to recover damages or otherwise obtain reimbursement or restitution more than once in respect of the same loss arising from any one matter under representations and warranties.
|
| 8.1.4 |
For the avoidance of doubt, the Noteholder shall be entitled to make a Noteholder Claim in respect of the same matter under both this Agreement and the Securities Purchase Agreement, PROVIDED ALWAYS
that the Company’s liability for Damages shall not exceed an amount equal to the Investment for Noteholder Claims under the Securities Purchase Agreement, and the Company’s liability for Damages shall not exceed an amount equal to the
amount of the Convertible Note Financing for Noteholder Claims under the Convertible Loan Note Instrument.
|
1 NTD: Maturity date is seven years from the issuance of the Note.
10
| 8.1.5 |
The representations and warranties contained or otherwise imported herein shall survive the Closing for six (6) years following the Closing Date with regards to the Special Representations and three (3) years following the Closing Date
with regards to any other representations and warranties. For the avoidance of doubt, any Noteholder Claim made pursuant to this Agreement must be notified to the Company within the period ending on the third anniversary of the date of
this Agreement or the sixth anniversary of the date of this Agreement with respect to any Special Representations.
|
| 8.2 |
Representations and warranties
|
The representations and warranties contained in clauses 3.2.1 to 3.2.32 (inclusive) of the Securities Purchase Agreement are hereby incorporated into this Agreement in their
entirety and shall apply mutatis mutandis to this Agreement (as if they were set out in full in this Agreement). Any references to New ADSs in Sections 3.2.4 (No Conflicts),
3.2.6 (Issuance of the Securities), 3.2.9 (Material Changes), 3.2.10 (Litigation), 3.2.23 (Investment
Company), 3.2.24 (Private Placement) and 3.2.27 (Solvency) of the Securities Purchase Agreement shall have the equivalent meaning of Notes as defined in this
Agreement.
| 8.3 |
General Disclosure
|
Notwithstanding any other provision of this Agreement, the terms and contents of each of the Credit Agreement, the SEC Reports and the Financial Diligence Documents shall be
deemed part of this Section 8 and shall qualify each of the representations and warranties set out or otherwise incorporated therein.
| 9 |
Accelerated Repayment
|
| 9.1 |
Immediate Payment
|
Subject to the terms of the Subordination Agreement, the Notes shall become immediately repayable at par together with any accrued interest, if applicable, on the happening at
any time of any of the following events (each an “Event of Default”):
| 9.1.1 |
if the Company fails to repay the principal amount of the Notes or any part of it or to pay any interest thereon within 10 (ten) Trading Days after the due date for such repayment or payment;
|
| 9.1.2 |
if the Company or any Material Subsidiary ceases or threatens to cease carrying on (a) its business or (b) a part of its business which is material to the group of companies comprising the Company and its Subsidiaries, taken as a whole;
|
11
| 9.1.3 |
if the Company or any Material Subsidiary is, or is adjudicated, found to be, becomes or is deemed to become insolvent or stops or suspends payment of its debts or is (or is deemed to be) unable to or admits inability to pay its debts as
they fall due or proposes or makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
| 9.1.4 |
if any order is made by any competent court or any effective resolution is passed for the winding up or dissolution of or for the appointment of a liquidator to the Company or any Material Subsidiary;
|
| 9.1.5 |
if an encumbrancer takes possession or a receiver, manager or trustee is appointed over the whole or any substantial part of the undertaking, property or assets of the Company
or any Material Subsidiary or distress or other process is levied or enforced upon any of the assets, rights or revenues of the Company or any Material Subsidiary and any such
action is not lifted or discharged within 21 (twenty-one) days;
|
| 9.1.6 |
an order is made by any competent court or a petition is presented for the appointment of an examiner to the Company or any Material Subsidiary or an examiner is appointed in respect of the Company or any Material Subsidiary;
|
| 9.1.7 |
if any other loan notes or other indebtedness (other than (i) trade debts arising in the ordinary course of business or (ii) loan notes or other indebtedness of an individual value of less than USD 1,000,000) issued or owing by the
Company become repayable before its due date by reason of the Company’s default or is not paid when due and the holders of such loan note or loan stock or any creditor take any steps to enforce payment.
|
| 9.2 |
Notice of Event
|
The Company shall forthwith give notice to the Noteholder of the happening of any event mentioned in clause 9.1 (Immediate Payment) upon becoming aware of the same.
| 10 |
Adjustment Event
|
Following an Adjustment Event, the professional advisors or auditors of the Company for the time being shall certify to the Company in writing the adjustments to the number
and nominal value of the Ordinary Shares to be issued on a conversion of Notes which they consider to be necessary so that, after such adjustment and on conversion, the Noteholders shall be entitled to receive the same percentage of the issued
share capital of the Company carrying the same proportion of votes exercisable at a general meeting of shareholders and the same entitlement to participate in distributions of the Company, in each case as nearly as practicable, as would have been
the case had no Adjustment Event occurred (and making such reduction or increase as is necessary to the premium arising on the issue and allotment of the Ordinary Shares on conversion of the Notes). The Company shall then notify the Noteholders in
writing of the necessary adjustment as determined by the professional advisors or auditors.
| 11 |
Registration Rights
|
Except as disclosed in the SEC Reports and the rights of the Purchaser under the Registrations Rights Agreement and the Securities Purchase Agreement, no Person has any right
to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
12
| 12 |
Certificates
|
| 12.1 |
Entitlement of Noteholder
|
The Noteholder shall be entitled without charge to one Certificate for the total amount of Notes registered in their name.
| 12.2 |
Affixing of Seal
|
Every Certificate shall be issued under the common seal of the Company which shall be affixed in accordance with the articles of association for the time being of the Company
and shall bear a denoting number and the Company shall attach a copy of this Instrument to each Certificate.
| 13 |
Surrender and Cancellation
|
| 13.1 |
Surrender of Certificate
|
Notes shall only be redeemed against surrender of the relevant Certificate(s) for cancellation in the case of full redemption and for the enfacement of a memorandum of the
amount and date of redemption in the case of partial redemption.
| 13.2 |
Failure to Deliver Certificate or Accept Payment
|
If any Noteholder whose Note is liable to be redeemed (whether in whole or in part) under the provisions of this Instrument shall fail or refuse to deliver up the
Certificate(s) for such Notes at the time and place fixed for redemption thereof or shall fail or refuse to accept payment of the redemption monies payable in respect thereof the monies payable to such Noteholder may be paid over by the Company to
a separate account to be held in trust for such Noteholder but without interest and such setting aside shall be deemed for all purposes hereof to be a payment to such Noteholder and the Company shall thereby be discharged from all obligations in
connection with such Notes
| 13.3 |
Cancellation of Redeemed Notes
|
| 13.4 |
The redemption of the Notes under the provisions of this Instrument shall be effected by each Noteholder physically delivering to the Company such Noteholder’s Notes and Certificates without executing an instrument of transfer.
|
| 13.5 |
All Notes redeemed by the Company under the provisions of this Instrument shall be cancelled and the Company shall not re-issue the same Notes.
|
| 13.6 |
Payment of Amount of Note
|
As and when the relevant Notes are repaid under the provisions of this Instrument or as and when interest payments on the Notes are due, the Company shall pay to the
Noteholder the relevant repayment amount or interest payment amount, as the case may be, by way of electronic transfer of immediately available funds to such bank account as nominated by the relevant holder, and notified to the Company, as the bank
account into which the Repayment Amount or Interest Payment Amount, as the case may be, is to be paid.
13
| 14 |
Register of Noteholders
|
| 14.1 |
Register of Noteholders
|
The Company shall at all times maintain a register at its registered office (or other office of the Company at which the work of making up the Register is done, or if the
Company arranges with some other person for the making up of the Register to be undertaken on its behalf at that office where such work is to be undertaken) in which shall be entered the names and addresses of the holders for the time being of the
Notes, the amount of the Notes currently held by every registered holder and the principal monies paid up thereon, the dates upon which the name of such holder is registered as holder thereof, the serial number of each Certificate issued and its
date of issue.
| 14.2 |
Notification of Change of Address
|
The Noteholder shall forthwith notify the Company of any change of his name or address and the Company upon receiving such notification shall alter the Register accordingly.
| 14.3 |
Inspection of Register
|
The Register shall, at all reasonable times during office hours, be open for inspection by the Noteholders or any of them, or by any person authorised in writing by the
Noteholder, without charge provided that the Register may be closed by the Company for such period or periods and at such times as the Company may at its discretion think fit provided that the Register is not to be closed for more than 30 (thirty)
days in any one year and during such period the Company shall be under no obligation to register any transfers of Notes.
| 15 |
Title of Noteholders
|
| 15.1 |
Recognition of Registered Holder
|
(Except as required by law or by a court of competent jurisdiction) the Company shall only recognise the registered holder of any Notes as the sole absolute owner thereof. The
Company shall not be bound to take notice or see to the execution of any trust whether express, implied or constructive to which any Notes may be subject and shall not be affected by any notice it may have whether express, implied or constructive
of the right, title, interest or claim of any other persons to or in such Notes or monies.
| 15.2 |
Entitlement to Principal Amount
|
Every Noteholder shall be entitled to the principal amount of the Notes and accrued interest (after deduction of tax) free from any equity, set-off or cross-claim on the part
of the Company against the original or any intermediate holder of the Notes.
| 16 |
Transfer of Notes
|
| 16.1 |
Transferability
|
This Instrument or any Notes issued hereunder may not be assigned by the Company without the prior written consent of the Noteholder. This Instrument, or any portion of the
rights and provisions held by the Noteholder under this Instrument, including, but not limited to, the right to appoint the Noteholder Directors, or any Notes issued hereunder may be assigned by the Noteholder. In order to assign this Instrument or
transfer any of the Notes constituted hereunder, the Noteholder or their duly authorised attorneys, shall surrender the relevant Notes at the office of the Company accompanied by an assignment duly executed by the Noteholder thereof.
14
| 16.2 |
Transfer in Writing
|
Subject to clauses 5.6 and 13.3, a transfer of a Note must be by an instrument in writing in the usual or common form (or in such form as the Board of Directors may approve)
which is signed by or on behalf of the transferor. The transferor shall be deemed to remain the owner of the Notes to be transferred until the name of the transferee is entered in the Register in respect thereof.
| 16.3 |
Registration of Transfer
|
Every instrument of transfer must be delivered to the registered office of the Company or to such other place as the Company may appoint for registration accompanied by the
Certificate of the Notes to be transferred together with such other evidence as the Board of Directors or other officers of the Company authorised to deal with the transfer may require to prove the title of the transferor or his right to transfer
the Notes.
| 16.4 |
Retention of Transfer Instruments
|
The Company shall retain all instruments of transfer which are registered.
| 17 |
Board Composition
|
| 17.1 |
For so long as the initial Noteholder:
|
| 17.1.1 |
holds a Qualified Note Holding, it shall be entitled to nominate two (2) individuals for consideration by the nomination committee of the Board of Directors (the “Nomination Committee”) for
appointment as directors of the Company (the “Convertible Note Directors”); and
|
| 17.1.2 |
holds a Reduced Qualified Note Holding, it shall be entitled to nominate one (1) individual for consideration by the Nomination Committee for appointment as a Convertible Note Director.
|
| 17.2 |
For the avoidance of doubt, where the Noteholder holds less than a Reduced Qualified Note Holding, it shall not be entitled to nominate any individual for consideration by the Nomination Committee for appointment as a Convertible Note
Director.
|
15
| 17.3 |
The Nomination Committee shall consult with and reasonably consider the views of the Noteholder in considering such Convertible Note Directors (but, for the avoidance of doubt, shall not be bound by any such views). The Noteholder shall
use reasonable efforts to ensure that the SPA Directors (as such term is defined in the Securities Purchase Agreement) and Convertible Note Directors, collectively, have the experience, skill and cost appropriate to the Company, including,
without limitation, that at least three of the SPA Directors and Convertible Note Directors (or where there are less than three but at least one SPA Director(s) and Convertible Note Directors, all such directors) shall be independent and
have substantial public and/or private investment experience, and that one of such directors has substantial experience at a diagnostics testing business having annualized revenues greater than USD 1 billion.
|
| 17.4 |
When considering the Convertible Note Directors, the Nomination Committee shall take into consideration the need for the Company to retain its Irish tax status and status as a foreign private issuer under applicable federal securities
laws.
|
| 17.5 |
The Company and the Noteholder agree and acknowledge that in order for a Convertible Note Director to be considered ‘independent’. That director must at all times meet the independence standards set out in the NASDAQ Stock Market Rules.
|
| 17.6 |
Any vacancies created by the resignation, removal or death of a Convertible Note Director elected pursuant to this Agreement shall be filled subject always to the process for nomination of a Convertible Note Director set out in this
clause 17.
|
| 18 |
General
|
| 18.1 |
Consent to Variation
|
No variation of this Instrument and the conditions on which the Notes are held shall be valid unless it is with the consent in writing of the Company.
| 18.2 |
Further Loan Capital
|
Subject to clause 13.3 (Cancellation of Redeemed Notes), the Company reserves the power to create and issue at its discretion from time to time further loan capital ranking in
priority to or pari passu with or subordinate to the Notes whether secured or unsecured for cash or otherwise at par or at a premium or at a discount and with or without rights of conversion into or subscription for shares of the Company and
carrying such rights as to premium, interest, maturity, repayment and otherwise as the Company shall think fit.
| 18.3 |
Notices
|
Any notice or other communication (whether required or permitted to be given under or in connection with this Instrument) shall be in writing and shall (at the option of the
party giving the notice) be:
| 18.3.1 |
delivered by hand;
|
| 18.3.2 |
sent by facsimile; or
|
| 18.3.3 |
sent by electronic mail,
|
to the address or facsimile number, in the case of the Company, set out under its name below, or in the case of the holder of Notes, his address or facsimile number on the
Register, or to such other address or facsimile number as is from time to time notified to the party giving the notice in compliance with the provisions of these clauses 16.3 (Notices) to 16.4 (Deemed Service):
The Company
Address: IDA Business Park, Bray, Wicklow, Ireland
Email: john.gillard@trinitybiotech.com
for the urgent attention of Mr. John Gillard.
16
| 18.4 |
Deemed Service
|
Any notice or communication referred to in clause 18.3 (Notices) shall be deemed to have been served:
| 18.4.1 |
if delivered by hand, on delivery;
|
| 18.4.2 |
if sent by facsimile or electronic mail shall be confirmed in writing promptly after the delivery of such notice or communication (it being understood that non-receipt of written confirmation of such communication shall not invalidate
such communication).
|
| 18.5 |
Confirmation of Notice
|
Each person giving a notice or making a communication hereunder by facsimile shall promptly confirm such notice or communication by post to the person to whom such notice or
communication was addressed but the absence of any such confirmation shall not affect the validity of any such notice or communication or the time upon which it is deemed to have been served.
| 18.6 |
Waiver of Breach
|
A waiver by the Company of any breach by the other of any of the terms or provisions of this Instrument or the acquiescence of the Company in any act (whether commission or
omission) which but for such acquiescence would be a breach as aforesaid shall not constitute a general waiver of such term or provision or an acquiescence to any subsequent act contrary thereto.
| 18.7 |
Additional Rights or Remedies
|
Any remedy or right conferred upon the Company for breach of this Instrument shall be in addition to and without prejudice to all other rights and remedies available to it
whether pursuant to this Instrument or provided for by law.
| 18.8 |
Delay in Exercising Claim
|
No failure or delay by the Company in exercising any claim, remedy, right, power or privilege under this Instrument shall operate as a waiver nor shall a single or partial
exercise of any claim, remedy, right, power or privilege preclude any further exercise thereof or exercise of any other claim, right, power or privilege.
| 18.9 |
Release of Liability
|
Any liability of the Noteholder to the Company under the provisions of this Instrument may in whole or in part be released, varied, postponed, compounded or compromised by the
Company in its absolute discretion as regards such person without in any way prejudicing or affecting its rights against any other person under the same or a like liability whether joint and several or otherwise.
17
| 18.10 |
No Recourse Against Others
|
No director, officer or employee of the Company or its subsidiaries shall have any liability for any obligations of the Company under the Notes, this Instrument or any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Noteholder, by accepting a Note, waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
| 18.11 |
Severability
|
Should any provision of this Instrument transpire not to be enforceable against any person, such non-enforceability shall not render such provision unenforceable against any
other person.
| 18.12 |
Governing Law and Jurisdiction
|
This Instrument shall be governed by and construed in accordance with the laws of Ireland. Each of the Noteholders and the Company hereby agrees for the benefit of the
Company and without prejudice to the right of the Company to take proceedings in relation hereto before any other court of competent jurisdiction, that the courts of Ireland shall have jurisdiction to hear and determine any suit, action or
proceedings that may arise out of or in connection with this Instrument and for such purposes irrevocably submits to the jurisdiction of such courts.
| 18.13 |
Survival
|
For so long as the Noteholder has Qualified ADS Holding, the provisions of clause 17 (Board Composition) and the defined terms set forth therein shall survive the termination,
repayment or maturity of the Notes.
[Signature Pages to Follow]
18
IN WITNESS whereof this Instrument has been duly executed and delivered as a deed on the date shown at the beginning of this Instrument.
1
Loan Note Certificate
Trinity Biotech Public Limited Company (the “Company”) a public limited company incorporated under
the laws of Ireland (registration number 183476
Certificate No [●] (the “Certificate”)
ISSUE of USD [●] redeemable convertible unsecured loan notes 2029 (the “Notes”).
Created and issued pursuant to the Company’s memorandum and articles of association and a resolution of its board of directors passed on April 8, 2022 which resolved that such notes be so
constituted.
THIS IS TO CERTIFY that [●] of [●][is][are] the registered holder[s] of USD [●] of the Notes which are constituted by an instrument (the “Instrument”) entered into by the Company dated [●] 2022 and are issued with the benefit of and subject to
the provisions contained in the Instrument a copy of which is attached to this Certificate.
Interest is payable at the rate specified in the Instrument by quarterly instalments on [●] and [●] in each year commencing on [●] when the first payment of interest will be paid in respect of the
period commencing on the date hereof (being the date of issue of the Notes the subject of this Certificate) to such date.
The Notes are transferable only in nominal amounts and integral multiples of USD [●]. The Notes are transferable, redeemable and convertible in accordance with the terms and conditions contained
in the Instrument.
Dated: [●] 2022
GIVEN under the Common Seal of
TRINITY BIOTECH PUBLIC LIMITED COMPANY
and delivered as a deed
|
|
Director
Director / Secretary
|
2
Share Notice
USD [●] Redeemable Convertible Unsecured Loan Notes 2029 (the “Notes”)
|
To:
|
The Secretary
|
Trinity Biotech Public Limited Company
We refer to your notice to us under clause 6.2 of the Instrument.
This notice shall constitute a Share Notice for the purposes of clause 6.2 of the Instrument.
Please DWAC our Conversion Shares to the following account: [●]
[As required by clause 5 of the Instrument, we confirm that the conversion of all of our Notes would cause our and our Concert Parties’ Voting Rights to exceed the Maximum Percentage in the event
the Company does not obtain any of the Required WP Approval:
| ◾ |
the percentage amount of Voting Rights by which our and our Concert Parties’ Voting Rights would exceed the Maximum Percentage is: [●]%2;
|
| ◾ |
the maximum number of Conversion Shares which may be delivered to us is [●]; and
|
| ◾ |
the remaining principal value of our Notes following the delivery of the reduced Conversion Shares is USD [●].]3
|
* PART A
We accept all the fully paid Ordinary Shares (represented by ADSs) to be issued pursuant to this notice subject to the memorandum and articles of association of the Company.
Capitalised terms not otherwise defined in this Share Notice shall have the meanings given to them in the instrument constituting the Notes.
|
|
___________________________________________________
(signature(s) of Noteholder(s))
|
Dated: [●]
2 The amount of Voting Rights over 29.9% that the Noteholder (and its Concert Parties) would
otherwise acquire.
3 Delete as necessary.
3
GIVEN under the Common Seal of
TRINITY BIOTECH PUBLIC LIMITED COMPANY
and delivered as a deed
|
|
Director
Director / Secretary
|
4
DATED APRIL [•], 2022
|
TRINITY BIOTECH PUBLIC LIMITED COMPANY
|
REDEEMABLE UNSECURED CONVERTIBLE LOAN NOTE
This Instrument and all Notes issued hereunder are subject to the provisions of a
Subordination Agreement (as defined herein)
|
MATHESON
70 Sir John Rogerson’s Quay
Dublin 2
Ireland
TEL + 353 1 232 2000
FAX + 353 1 232 3333
55514490.2
|
Exhibit 99.4
Execution Version
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of this ● day of April, 2022 by and among
Trinity Biotech plc, a public limited company incorporated under the laws of Ireland (“Company”), and certain persons listed on Schedule A hereto (such persons, in their capacity as holders of
Registrable Securities (as defined below), the “Holders” and each a “Holder”).
RECITALS
WHEREAS, the execution and delivery of this Agreement is a condition to the closing of that certain Securities Purchase Agreement, dated as of April ●, 2022
by and among the Company, MiCo IVD Holdings, LLC, a Delaware limited liability company (the “Purchaser”), and MiCo, Ltd., a limited company organized under the laws of South Korea (as the same may be amended
or supplemented from time to time, the “Purchase Agreement”). Capitalized terms used but not defined herein have the meanings attributed thereto in the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. — Definitions. As used in this Agreement, the following terms shall have the following meanings:
“Additional Filing Deadline” shall have the meaning set forth in Section 2(d).
“Additional Effectiveness Deadline” shall have the meaning set forth in Section 2(d).
“Additional Registrable Securities” means, as of any date of determination, (a) all ADSs then issued and issuable upon conversion in full of the Convertible
Note (assuming on such date the Convertible Note is converted in full without regard to any conversion limitations therein), (b) any additional ADSs issued and issuable in connection with any anti-dilution provisions in the Convertible Note,
without giving effect to any limitations on conversion set forth in the Convertible Note, and (c) any securities issued or then issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the
foregoing. Any such Additional Registrable Securities shall cease to be Additional Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another Demand Registration Statement with respect to)
when and for so long as (i) a Demand Registration Statement with respect to the sale of such Additional Registrable Securities has been declared effective by the Commission under the Securities Act and such Additional Registrable Securities have
been disposed of pursuant to such effective Demand Registration Statement, (ii) such Additional Registrable Securities have been previously sold under in accordance with Rule 144 (or any similar provisions then in force), (iii) such securities are
otherwise transferred and such securities may be resold without subsequent registration under the Securities Act, or (iv) such securities shall have ceased to be outstanding.
“Convertible Note”” means the convertible note issued pursuant to the Convertible Note Agreement.
“Demand Registration” has the meaning set forth in Section 2.1(e).
“Demand Registration Event” means the earlier to occur of (a) the sale by the Holders of more than sixty-six and two-thirds percent (66-2/3%) of the Initial
Registrable Shares pursuant to the Resale Registration Statement; or (b) the conversion of all or a portion of the Convertible Note.
“Effectiveness Deadline” shall have the meaning set forth in Section 2(b).
“Effectiveness Period” shall have the meaning set forth in Section 2(b).
- 1 -
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended (or any corresponding provision of succeeding law) and the rules and regulations
thereunder.
“Initial Registrable Securities” means, as of any date of determination, (a) the New ADSs, and (b) any securities issued or then issuable upon any stock
split, dividend or other distribution, recapitalization or similar event with respect to the foregoing. Any such Initial Registrable Securities shall cease to be Initial Registrable Securities (and the Company shall not be required to maintain the
effectiveness of any, or file another Resale Registration Statement with respect to) when and for so long as (i) a Resale Registration Statement with respect to the sale of such Initial Registrable Securities has been declared effective by the
Commission under the Securities Act and such Initial Registrable Securities have been disposed of pursuant to such effective Resale Registration Statement, (ii) such Initial Registrable Securities have been previously sold under in accordance with
Rule 144 (or any similar provisions then in force), (iii) such securities are otherwise transferred and such securities may be resold without subsequent registration under the Securities Act, or (iv) such securities shall have ceased to be
outstanding.
“Registrable Securities” means, collectively, the Initial Registrable Securities and the Additional Registrable Securities.
“Registration Expenses” shall mean all expenses incurred in effecting any registration pursuant to this Agreement, including registration, qualification,
listing and filing fees (including, without limitation, all SEC filing fees), printing expenses, transfer agents and registrar’s fees and expenses, fees and disbursements of counsel for Company and all accountants and other persons retained by
Company, any reasonable fees and disbursements of underwriters customarily paid by issuers or sellers of securities fees and expenses associated with any Registration Statement, as well as all internal fees and expenses of Company. “Registration
Expenses” shall not include any transfer taxes applicable to the sale, transfer, issuance or allotment of Registrable Securities or transfer taxes arising from the conversion of ordinary shares into ADSs.
“Registration Statements” means, collectively, any Resale Registration Statement and any Demand Registration Statement.
“Resale Registration” shall have the meaning set forth in Section 2(a).
“Resale Registration Statement” shall have the meaning set forth in Section 2(a).
“Resale Registration Statement Filing Deadline” shall have the meaning set forth in Section 2(a).
“Rule 144” means Rule 144 under the Securities Act or any successor rule thereto.
“Rule 415” means Rule 415 under the Securities Act or any successor rule thereto.
“Rule 424” means Rule 424 under the Securities Act or any successor rule thereto.
“SEC Guidance” means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commission
staff and (ii) the Securities Act.
“Securities Act” shall mean the Securities Act of 1933, as amended (or any corresponding provision of succeeding law), and the rules and regulations
thereunder.
“Selling Expenses” shall mean all underwriting discounts, selling commissions, stock transfer taxes applicable to the sale, transfer, issuance or allotment of
Registrable Securities, and other selling expenses associated with effecting any sales of Registrable Securities under any Registration Statement which are not included as Registration Expenses.
- 2 -
Section 2. — Registration Rights.
(a) Resale Registration Statement. On or before June 30, 2022 (the “Resale Registration Statement Filing Deadline”), the Company shall prepare and
file or cause to be prepared and filed with the Commission a registration statement Form F-3 (or, subject to the last sentence of this Section 2(a), such other appropriate form) for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a “Resale Registration Statement”) pursuant to which all of the Initial Registrable Securities described in subsection (a) and (d) of the definition of “Registrable
Securities” received by the Purchaser (or the Holders) pursuant to the Purchase Agreement shall be registered for resale by such Holders (the “Resale Registration”). If Form F-3 or, if the use of Form F-3 is
not then available to the Company or for the Resale Registration, the Company shall (x) register the resale of the Initial Registrable Securities on Form F-1 or such other appropriate registration statement form permitting registration of such
Initial Registrable Securities for resale by the Purchaser, and (y) undertake to register the Initial Registrable Securities on Form F-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of such Resale
Registration Statement then in effect until such time as a Registration Statement on Form F-3 covering the Initial Registrable Securities has been declared effective by the Commission.
(b) Effectiveness. The Company shall use its best efforts to cause the Resale Registration Statement(s) filed pursuant to Section 2(a) to be declared effective by the Commission or otherwise
become effective under the Securities Act as soon as possible after filing, but in no event later than the date that is the earlier of (i) sixty (60) days following the Resale Registration Statement Filing Deadline or (ii) five (5) Business Days
after the Commission notifies the Company that it will not review the Resale Registration Statement, if applicable (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended
by no more than ninety (90) days after the Filing Deadline if the Resale Registration Statement is reviewed by, and receives comments from, the Commission. Once effective, the Company shall keep the Resale Registration Statement continuously
effective and supplemented and amended to the extent necessary to ensure that such Resale Registration Statement is available or, if not available, to ensure that another registration statement is available, under the Securities Act at all times
until the later of such date as all Registrable Securities covered by the Resale Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Resale Registration Statement or such
securities have been withdrawn (the “Effectiveness Period”). The Resale Registration Statement shall contain a prospectus in such form as to permit the Purchaser to sell such Registrable Securities pursuant
to Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Resale Registration Statement, and shall provide that such Initial
Registrable Securities may be sold pursuant to any method or combination of methods legally available to, and requested by, the Purchaser. By 5:30 p.m. New York time on the Business Day following the date any such Resale Registration Statement is
declared effective by the Commission, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Resale Registration Statement.
(c) Additional Selling Stockholders. At any time and from time to time that a Resale Registration Statement is effective, if a Holder of Registrable Securities requests that such Holder be
added as a selling stockholder in such Resale Registration Statement, the Company shall as promptly as practicable amend or supplement the Resale Registration Statement to cover such Holder.
(d) Rule 415 Cutbacks. Notwithstanding any other provision of this Agreement, if the staff of the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities
permitted to be registered on the Resale Registration Statement (and notwithstanding that the Company used diligent efforts to advocate with the staff of the Commission for the registration of all or a greater portion of Registrable Securities),
the Company shall reduce the number of Registrable Securities on a pro rata basis based on the total number of unregistered Registrable Securities held by such Holders. In the event of a cutback hereunder, the Company shall give each Holder at
least five (5) Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Company amends the Resale Registration Statement in accordance with the foregoing, the Company will use its reasonable best
efforts to file with the Commission, on the earliest practical date on which the Company is permitted by SEC Guidance to file such additional Resale Registration Statement related to the Initial Registrable Securities (the “Additional Filing Deadline”), one or more registration statement(s) on Form F-3 (or such other form available as provided in Section 2(a)) to register for resale those Initial
Registrable Securities that were not registered for resale on the initial Resale Registration Statement and cause such Resale Registration Statement(s) to be declared effective on or prior to the earlier of (i) in the event that such additional
Resale Registration Statement (x) is not subject to a review by the Commission, sixty (60) calendar days after the earlier of (A) the applicable Additional Filing Deadline and (B) the date such additional Resale Registration Statement was filed
with the Commission and (y) is subject to a review by the Commission, ninety (90) calendar days after the earlier of (A) the applicable Additional Filing Deadline and (B) the date such additional Resale Registration Statement was filed with the
Commission and (ii) five (5) Business Days after the date the Company receives written notification from the Commission that such additional Resale Registration(s) will not be reviewed (the “Additional
Effectiveness Deadline”). By 5:30 p.m. New York time on the Business Day following the date any such additional Resale Registration Statement is declared effective by the Commission, the Company shall file with the Commission in accordance
with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such additional Resale Registration Statement.
- 3 -
(e) Demand Registration Statement. Upon request of any of the Holders after the occurrence of a Demand Registration Event, the Company shall as soon as practicable and in any event within
sixty (60) days after the date such request is delivered to the Company, prepare and file or cause to be prepared and filed with the Commission a registration statement Form F-3 (or, subject to the penultimate sentence of this Section 2(h), such
other appropriate form) for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act (a “Demand Registration Statement”) pursuant to which all of the Additional
Registrable Securities received by the Purchaser (or the Holders) pursuant to conversion of the Convertible Note shall be registered for resale by such Holders (the “Demand Registration”). If Form F-3 or, if
the use of Form F-3 is not then available to the Company or for the Resale Registration, the Company shall (x) register the resale of the Additional Registrable Securities on Form F-1 or such other appropriate registration statement form permitting
registration of such Additional Registrable Securities for resale by the Purchaser, and (y) undertake to register the Additional Registrable Securities on Form F-3 as soon as such form is available, provided that the Company shall maintain the
effectiveness of such Demand Registration Statement then in effect until such time as a Demand Registration Statement on Form F-3 covering the Additional Registrable Securities has been declared effective by the Commission. All provisions set
forth in this Agreement (including, without limitation, Sections 2(b) through 2(d)) with respect to Resale Registration Statements shall apply, mutatis, mutandis, to the Demand Registration Statements
required to be filed hereunder (except to the extent expressly set forth in this Section 2.1(e)).
(f) Sufficient ADSs. The Company represents and warrants that there are sufficient ADSs registered on a registration statement on Form F-6 and available for issuance in respect of all
Registrable Securities, including those issuable pursuant to the hereunder, and the Company covenants that it will cause a sufficient number of ADSs to remain registered on a registration statement on Form F-6 and available for issuance to satisfy
the Company’s obligations hereunder at all times that this Agreement is in effect.
Section 3. — Registration Procedures.
(a) In connection with the filing of any Registration Statement pursuant to this Agreement, Company shall use its reasonable best efforts to, as promptly as reasonably practicable:
(i) before filing such Registration Statement or any amendments or supplements thereto, provide to one representative on behalf of all Holders included in such Registration
Statement (to be chosen by Holders of a majority of Registrable Securities to be included in such Registration Statement), provided that such opportunity to review and comment shall not apply to any reports filed by Company in the ordinary
course of business pursuant to the Exchange Act;
(ii) prepare and file with the Commission (and subject to the review and comment provisions set forth in paragraph 4(a)(i) above) such pre- and post-effective amendments and
supplements to such Registration Statement and the prospectus used in connection therewith to maintain the effectiveness of such registration and to comply with the provisions of applicable securities laws with respect to the disposition of all
securities covered by such Registration Statement during the period in which such Registration Statement is required to be kept effective;
(iii) furnish to each Holder of the securities being registered an electronic copy of the prospectus contained in such Registration Statement and any other prospectus filed
under Rule 424 under the Securities Act in conformity with the requirements of the Securities Act, and such other documents, as the Holders may reasonably request;
(iv) register or qualify all Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as the Holders may reasonably request, except that
Company shall not for any such purpose be required to qualify generally to do business as a foreign company in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(a)(iv), or to consent to general service of
process in any such jurisdiction, or to be subject to any material tax obligation in any such jurisdiction where it is not then so subject;
- 4 -
(v) promptly notify the Holder at any time when Company becomes aware that a prospectus relating thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances under which they were made, and, to promptly prepare and furnish without charge to the Holder an electronic copy of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which they were made;
(vi) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement not later than the effective date
of such Registration Statement;
(vii) cooperate with the Holder to facilitate the transfer of the Registrable Securities that are sold;
(viii) list all Registrable Securities covered by such Registration Statement on any securities exchange on which any such class of securities is then listed and cause to be
satisfied all requirements and conditions of such securities exchange to the listing of such securities that are reasonably within the control of Company;
(ix) notify the Holder promptly after it shall receive notice thereof, of the time when such Registration Statement, or any post-effective amendments to the Registration
Statement, shall have become effective and in any event within one (1) Business Day after the Resale Registration Statement becomes effective, and shall furnish to Purchaser, without charge, an electronic copy of the Resale Registration Statement
(including any amendments, supplements and exhibits), the prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents incorporated by reference in the Resale Registration
Statement or such other documents as the Purchaser may reasonably request in order to facilitate the sale of the Registrable Securities in the manner described in the Resale Registration Statement;
(x) to make available to the Holder as soon as reasonably practicable after the same is prepared and publicly distributed, filed with the Commission, or received by Company,
an executed copy of each letter written by or on behalf of Company to the Commission or the staff of the Commission (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign
securities exchange), and any item of correspondence received from the Commission or the Staff of the Commission (or other governmental agency or self –regulatory body or other body having jurisdiction, including any domestic or foreign securities
exchange), in each case relating to such Registration Statement. Company will as soon as reasonably practicable notify the Holders and any managing underwriter(s) of the effectiveness of such Registration Statement or any post-effective amendment
or the filing of the prospectus supplement contemplated herein. Company will as soon as reasonably practicable respond reasonably and completely to any and all comments received from the Commission or the Staff of the Commission, with a view
towards causing such Registration Statement or any amendment thereto to be declared effective by the Commission as soon as reasonably practicable and shall file an acceleration request as soon as reasonably practicable following the resolution or
clearance of all comments from the Commission or its staff or, if applicable, following notification by the Commission that any such Registration Statement or any amendment thereto will not be subject to review;
(xi) advise each Holder promptly after it shall receive notice or obtain knowledge thereof, of (A) the issuance of any stop order, injunction or other order or requirement by
the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and use its reasonable best efforts to prevent the issuance of any stop order, injunction or other order
or requirement or to obtain its withdrawal if such stop order, injunction or other order or requirement should be issued, (B) the suspension of the registration of the subject class that includes the Registrable Securities in any state jurisdiction
and (C) the removal of any such stop order, injunction or other order or requirement or proceeding or the lifting of any such suspension;
- 5 -
(xiv) cooperate with each Holder participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be
made with the Financial Industry Regulatory Authority;
(b) As a condition precedent to the obligations of Company to file any Registration Statement covering Registrable Securities, each Holder shall furnish in writing to Company such information
regarding such Holder (and any of its Affiliates), the Registrable Securities to be sold, the intended method of distribution of such Registrable Securities and such other information requested by Company as is reasonably necessary or advisable for
inclusion in the Registration Statement relating to such offering pursuant to the Securities Act.
Each Holder agrees by acquisition of the Registrable Securities that (i) upon receipt of any notice from Company of the happening of any event of the kind described in Section 3(a)(v), such Holder
shall forthwith discontinue its disposition of Registrable Securities pursuant to the Registration Statement relating to such Registrable Securities until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by
Section 3(a)(v); (ii) upon receipt of any notice from Company of the happening of any event of the kind described in clause (A) of Section 3(a)(xii), such Holder shall discontinue its disposition of Registrable Securities pursuant to such
Registration Statement until such Holder’s receipt of the notice described in clause (C) of Section 3(a)(xii); and (iii) upon receipt of any notice from Company of the happening of any event of the kind described in clause (B) of Section 3(a)(xii),
such Holder shall discontinue its disposition of Registrable Securities pursuant to such Registration Statement in the applicable state jurisdiction(s) until such Holder’s receipt of the notice described in clause (C) of Section 3(a)(xii). The
length of time that any Registration Statement is required to remain effective shall be extended by any period of time that such Registration Statement is unavailable for use pursuant to this paragraph, provided in no event shall any
Registration Statement be required to remain effective after the date on which all Registrable Securities cease to be Registrable Securities.
Section 4. — Indemnification.
(a) Indemnification by Company. Company agrees to indemnify, hold harmless and reimburse, to the fullest extent permitted by law, each Holder, its partners, officers, directors, employees,
advisors, representatives and agents, and each person, if any, who controls such Holder within the meaning of the Securities Act or the Exchange Act, against any and all losses, penalties, liabilities, claims, damages and expenses, joint or several
(including, without limitation, reasonable attorneys’ fees and any expenses and reasonable costs of investigation), as incurred, to which the Holders or any such indemnitees may become subject under the Securities Act or otherwise, insofar as such
losses, penalties, liabilities, claims, damages and expenses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statements under which such Registrable Securities were registered and sold under the Securities Act, any preliminary prospectus, final prospectus, free writing prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or any violation of the Securities Act or state securities laws or rules thereunder by Company relating to any action or inaction by Company in connection with such registration; provided, however,
that Company shall not be liable in any such case to the extent that any such loss, penalty, liability, claim, damage (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged statement or
omission or alleged omission made in such Registration Statements, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information about a Holder which is
furnished to Company by such Holder specifically for use in such Registration Statements. This indemnity shall be in addition to any liability Company may otherwise have. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Holder or any indemnified party and shall survive the transfer of such securities by such Holder.
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(b) Indemnification by the Holders. Each Holder agrees to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 4(a)) Company, each member of the
Board, each officer, employee and agent of Company and each person, if any, who controls any of the foregoing within the meaning of the Securities Act or the Exchange Act, with respect to any untrue statement or alleged untrue statement of a
material fact in or omission or alleged omission to state a material fact from such Registration Statements, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information about such Holder furnished to Company by such Holder
specifically for inclusion in such Registration Statements, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement and has not been corrected in a subsequent Registration Statements, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or supplement thereto prior to or concurrently with the sale of the Registrable Securities to the Person asserting the claim; provided, however, that Holder shall
not be liable for any amounts in excess of the net proceeds received by such Holder from sales of Registrable Securities pursuant to the Registration Statements to which the claims relate, and provided, further, that the obligations
of the Holders shall be several and not joint and several. This indemnity shall be in addition to any liability Holder may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of
Company or any indemnified party and shall survive the transfer of such securities by Company.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in the preceding
paragraphs of this Section 4, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party, give written notice to such indemnifying party of the commencement of such action; provided, however,
that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding paragraphs of this Section 4, except to the extent that the indemnifying party is materially
prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist
with respect to such claim, such indemnified party shall permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any person entitled to
indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such person unless (A) the indemnifying party has agreed
to pay such fees or expenses or (B) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person within a reasonable time after receipt of notice of such claim from the
Person entitled to indemnification hereunder. If such defense is not assumed by the indemnifying party as permitted hereunder, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably withheld, conditioned or delayed). If such defense is assumed by the indemnifying party pursuant to the provisions hereof, such indemnifying party shall not settle or otherwise compromise the
applicable claim unless (i) such settlement or compromise contains a full and unconditional release of the indemnified party of all liability in respect to such claim or litigation or (ii) the indemnified party otherwise consents in writing. An
indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel (plus local counsel) for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any indemnified party, a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the reasonable fees and disbursements of such additional counsel or counsels.
The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party and shall survive the
transfer of securities.
(d) Contribution. If, for any reason, the foregoing indemnity is unavailable, or is insufficient to hold harmless an indemnified party, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of the loss, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, and the relative benefits
received by the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. No indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any indemnifying party who was not guilty of such fraudulent misrepresentation. In connection with any Registration Statements filed with the Commission by Company, the relative fault of the indemnifying party on the
one hand and of the indemnified person on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party, and by such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Notwithstanding the provisions of
this Section, no Holder shall be required to contribute an amount greater than the net proceeds received by such Holder from sales of Registrable Securities pursuant to the Registration Statements to which the claims relate (after taking into
account the amount of damages which such Holder has otherwise been required to pay by reason of any and all untrue or alleged untrue statements of material fact or omissions or alleged omissions of material fact made in any Registration Statements,
prospectus or preliminary prospectus or any amendment thereof or supplement thereto related to such sale of Registrable Securities).
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(e) No Exclusivity. The remedies provided for in this Section 4 are not exclusive and shall not limit any rights or remedies which may be available to any indemnified party at law or in
equity or pursuant to any other agreement.
Section 5. — Covenants Relating To Rule 144. Company shall use its reasonable best efforts to file any reports required to be filed by it under the Securities Act and the Exchange Act and
to take such further action as any Holder may reasonably request, all to the extent required from time to time to enable Holders to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such rule may be amended from time to time. Company shall, in connection with any sale, transfer or other disposition by any Holder of any ADSs pursuant to Rule 144 promulgated under the Securities
Act, promptly cause the timely preparation and delivery of certificates representing the ADSs to be sold and the removal of any legend restricting transfers of the ADSs, and enable certificates for such ADSs to be issued (or, in the case of
book-entry ADSs, make or cause to be made appropriate notifications on the books of Company’s transfer agent) for such number of ADSs and registered in such names as the Holders may reasonably request and to provide a customary opinion of counsel
required by Company’s transfer agent.
Section 6. — Miscellaneous.
(a) Termination; Survival. The rights of each Holder under this Agreement shall terminate upon the earlier of (i) the date on which the Holders collectively shall cease to hold Registrable
Securities representing at least 5% of the ADSs outstanding at such time if the Holder at that time is no longer deemed to be an Affiliate of the Company; and (ii) the date that all of the Registrable Securities held by such Holder cease to be
Registrable Securities. Notwithstanding the foregoing, the obligations of the parties under Sections 4, 5 and this Section 6 shall survive the termination of this Agreement.
(b) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement, whether in law or in equity, whether in contract or in tort, by statute
or otherwise, shall be governed and construed in accordance with the Laws of the State of New York without giving effect to the principles of conflicts of law thereof or of any other jurisdiction.
(c) Consent to Jurisdiction; Venue; Waiver of Jury Trial. IN ADDITION, EACH OF THE PARTIES HERETO (A) CONSENTS TO SUBMIT ITSELF, AND HEREBY SUBMITS ITSELF, TO THE PERSONAL JURISDICTION OF
THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK , OR, IF SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, ANY STATE SUPREME COURT OF THE STATE OF NEW YORK LOCATED IN THE COUNTY OF NEW YORK HAVING SUBJECT MATTER JURISDICTION,
IN THE EVENT ANY CLAIM, CONTROVERSY OR DISPUTE (IN EACH CASE, WHETHER IN LAW OR IN EQUITY, WHETHER IN CONTRACT OR IN TORT, BY STATUTE OR OTHERWISE) ARISES OUT OF, OR IS RELATED TO, THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, (B) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT, AND AGREES NOT TO PLEAD OR CLAIM ANY OBJECTION TO THE LAYING OF VENUE IN ANY SUCH COURT OR THAT
ANY JUDICIAL PROCEEDING IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (C) AGREES THAT IT WILL NOT BRING ANY ACTION (WHETHER IN LAW OR IN EQUITY, WHETHER IN CONTRACT OR IN TORT, BY STATUTE OR OTHERWISE) RELATING TO THIS AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IN ANY COURT OTHER THAN THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, OR, IF SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, ANY STATE SUPREME COURT OF THE STATE OF
NEW YORK LOCATED IN THE COUNTY OF NEW YORK HAVING SUBJECT MATTER JURISDICTION, AND (D) CONSENTS TO SERVICE OF PROCESS BEING MADE THROUGH THE NOTICE PROCEDURES SET FORTH IN SECTION 6(k). EACH OF THE PARTIES HERETO HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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(d) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, and it supersedes all prior and
contemporaneous agreements, representations and understandings of the parties, express or implied, oral or written.
(e) Amendments and Waivers. The provisions of this Agreement may be amended or waived at any time only by the written agreement of Company and the Holders of a majority of the Registrable
Securities then outstanding. Any waiver, permit, consent or approval of any kind or character on the part of any such Holders of any provision or condition of this Agreement must be made in writing and shall be effective only to the extent
specifically set forth in writing. Any amendment or waiver affected in accordance with this paragraph shall be binding upon Company and each Holder of Registrable Securities. Notwithstanding the foregoing, no amendments may be made to this
Agreement that adversely affect any Holder in a manner different than any other Holder without such Holder’s prior written consent.
(f) Assignment. Except as set forth herein, the rights and obligations of a Holder under this Agreement shall not be assignable by such Holder without prior, express written consent of
Company except to an Affiliate of that Holder. The rights and obligations of the Company under this Agreement shall not be assignable by Company without the consent of Holders of a majority of Registrable Securities then outstanding.
(g) Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the legal representatives, heirs, successors and assigns of the respective parties.
(h) Expenses. All Registration Expenses incurred in connection with any Registration Statements under this Agreement shall be borne by Company. All Selling Expenses relating to securities
registered on behalf of the Holders shall be borne by the Holders of the Registrable Securities included in such registration. The obligation of the Company to bear the expenses provided for in this paragraph shall apply irrespective of whether a
Registration Statement becomes effective, is withdrawn or suspended, or converted to any other form of registration and irrespective of when any of the foregoing shall occur.
(i) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile), all of which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the parties to this Agreement. Electronic or facsimile signatures shall be deemed to be original signatures.
(j) Severability. The parties agree that if any part, term or provision of this Agreement shall be found invalid, illegal or unenforceable in any respect by any court of law of competent
jurisdiction, the remaining provisions shall be severable, valid and enforceable in accordance with their terms, and any such invalidity, illegality or unenforceability in any jurisdiction shall not invalidate or render illegal or unenforceable
such provision in any other jurisdiction.
(k) Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly delivered (i) four (4) Business Days after being sent by registered or certified
mail, return receipt requested, postage prepaid, (ii) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service or (iii) on the date of confirmation of receipt (or, the
first Business Day following such receipt if the date of such receipt is not a Business Day) of transmission by email, in each case to the intended recipient as set forth below:
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If to a Holder, to the address indicated for such Holder in Schedule A hereto with a copy (which shall not constitute notice) to:
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Nelson Mullins Riley & Scarborough LLP
One Financial Center
Suite 3500
Boston, MA 02111
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Attn:
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James W. Bartling
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Brian T. Moore
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E-mail:
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jim.bartling@nelsonmullins.com
brian.moore@nelsonmullins.com
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If to Company, as follows:
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Trinity Healthcare plc.
IDA Business Park
Bray, Wicklow, Ireland
Attn: ●
Title: ●
E-mail: ●
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With a copy to (which shall not constitute notice) to:
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Carter Ledyard & Milburn LLP
2 Wall Street
New York, New York 10005
After July 1, 2022 to:
Carter Ledyard & Milburn LLP
28 Liberty Street
New York, NY 10005
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Attn:
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Steven J Glusband
Mary Winchurch Brown
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E-mail:
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glusband@clm.com
Mbrown@clm.com
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Any party may, from time to time, by written notice to the other parties, designate a different address, which shall be substituted for the one specified above for such party.
(l) Specific Performance. The parties agree that irreparable damage may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific
terms or were otherwise breached. Accordingly, the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in addition to any other
remedy to which they are entitled at law or in equity.
(m) No Waiver. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
[Signatures Appear on the Following Page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.
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COMPANY:
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TRINITY BIOTECH PLC
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By: ___________________________________________
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Name:
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Title:
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HOLDERS:
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[SIGNATURES OF ALL ENTITIES THAT WILL BE HOLDING THE SECURITIES]
[Signature Page to Registration Rights Agreement]
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Schedule A
The Holders
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Name of
Holder
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Number of
ADSs
Held |
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Address of Holder
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Email Address of Holder
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A - 1